Standing Committee B

[Mr. James Cran in the Chair]

Criminal Justice Bill

Clause 36 - Trials on indictment without a jury

Question proposed [this day], That the clause stand part of the Bill. 
 Question again proposed.

Vera Baird: The general points against the clause have already been made, but I want to emphasise four of them. The right to elect trial by judge alone already exists, but it relates only to low-level crime. Of course, at that low level, it is not a certainty that one is electing trial by judge alone, because the case may be tried by lay fact finders, in which case the lay element would not be excluded.
 The level of crime for which one can elect a magistrates court trial or, sometimes, trial by judge alone has varied over the years. Parliament has decided for what level of crime such an election is appropriate. Until now, Parliament has decided that, above a certain level of crime, the right mode of trial for the state is jury trial. Consequently, the existence of that procedure in relation to the lower level of crime is not in issue. The right to choose jury trial is not merely an advantage for the defendant, for which he should be entitled to opt: it is the right way to try serious crime, as the Government accept. They have said repeatedly that jury trial has served us well. Consequently, it is in the public good that, above that low level of crime, jury trials should be conducted in public, by the public, under the legal guidance of a judge. Given that broader interest in jury trials, they should not be prevented from occurring by the wish of a defendant. 
 I fear that the right to opt out will bring the system into disrepute. For example, accused paedophiles, alleged to have committed serious sexual offences, would expect to get a less unsympathetic hearing from a cool judge than from members of the public. It would be very difficult for people from an estate to accept that a person charged with abusing children in their vicinity had been able to opt for a form of trial that might favour them less because it would take less account of public awareness of the seriousness of such offences. People on an estate, such as Grangetown in my constituency, might ask why it was possible for the public to be completely excluded from considering the guilt or innocence of someone charged with such an offence, and at his behest. 
 White-collar criminals constitute another sector that is capable of bringing the criminal justice system into disrepute. People involved in middle-class crime who opt for non-jury trial will be seen to be opting for trial by their peer, a middle-class person who might be 
 expected to be more sympathetic to peccadilloes along the way than a broader spread of persons from different classes. 
 In addition, there are already complaints that magistrates who come from nice middle-class areas overestimate the impact of fairly low-level violence and are too ready to convict for it because it seems so dreadful to them, whereas it may not seem so harsh to someone who lives in a different social setting. There are also complaints about the opposite point of view. It is said that an experienced magistrate, who has seen an awful lot of horrible things, may undervalue some minor assault, although it is an important incident and may be part of a longer course of conduct on the estate where it occurred. Those problems all result from the fact that one individual may be seen from the outside as having particular prejudices or having taken particular positions in previous trials, whereas the public interest requires a diversity of fact finders and decision makers. It is not right that a defendant should be able to opt out of that fairer, wider, more socially desirable scrutiny. 
 Those are the problems that I perceive in the clause. However, the Bar Council pinpointed a worry, which was also flagged up by the hon. Member for Woking (Mr. Malins) before lunch, that there is a direct analogy with the Government's earlier attempts to remove a defendant's right to choose jury trial and to lodge it with the judiciary. There is a parallel here: at present, we are introducing a right to choose non-jury trial or jury trial. How soon, however, will it seem far more logical, just as it seemed to the same Government only a year ago, that that decision should be vested in the judiciary and not in the defendant? How soon will it be before jury trial is available only at the discretion of a judge? 
 There are problems with the clause as it stands, and there is considerable fear that it is the thin end of the wedge. My hon. Friend the Minister is aware of that argument, but it is extraordinarily difficult for him to give any reassurances on it. Although the next step or the next step but one may not be in the Government's mind now, it is none the less available to a Government who wish to introduce it. That is devoutly to be avoided, and the best way to avoid it is never to start in the first place. 
 There is a real risk of injustice from this proposal to rape complainants in particular. I shall make my next comments as brief as possible, as the Minister and others present listened to similar comments in the Chamber last night. It is well known that the conviction rates for rape are very low: 9 per cent. of complaints result in a conviction. That is largely because women are not happy to come to court because they do not like how they are treated. The judiciary are not the only culprits. They have not been supported very well by the police, although the police are getting better. They have not been supported very well by the Crown Prosecution Service, although it is getting better. The judiciary do not seem to be changing quite so speedily. 
 We often read headlines of appallingly sexist statements from the judges who are hearing rape trials. I do not know whether the Committee wants to 
 hear any quotations, or whether it will take them as read. [Hon. Members: ''Go ahead.''] In 2000, when one hoped that such attitudes would have passed, a judge called Goldstein, named and shamed in the Old Bailey, said that if previous sexual history was not allowed in rape trials, no jury would ever know whether a complainant was a tart or a nun. He said that that would be extremely unfair on a jury as they would not know what to make of her. That was in 2000, remember. 
 That judge sent the case to the Court of Appeal because he found no way of including previous sexual history in the trial under current law, although he dearly wanted to do so. Things did not get significantly better when he got to the Court of Appeal. There, Lord Justice Rose said that it seemed common sense to the Court of Appeal that if a woman had had sex with a man before—this was about previous sexual history with the defendant—she would have been more likely to have consented to sex with the same man again. Any woman judge sitting beside Lord Justice Rose, had there been any, or even any man who had had gender awareness training, would have appreciated that it might in fact be less likely that a woman would want to have sex with the same man. 
 I say that without fear of defiance, even though most of those present are men. There could be any kind of implications, could there not? A woman who has had sex with a man might start to go out with somebody different, and would then be less likely to want to have sex with the first man. She may decide that he is too serious, and that she will not do it out of prudence. All sorts of factors may influence her decision. However, the Court of Appeal can see only that it pointed one way: in favour of that woman's being, as it were, promiscuous. With such horrors being said now, one can only say on behalf of rape claimants, even though the conviction rate is pathetically low, thank goodness for juries, who to some extent come between them and such attitudes. 
 The problem now is that the judiciary set the framework within which the jury deliberate. The judiciary is 90 per cent. men, and those to whom I referred are not simply two old fogeys who ought to be retired: Rose is 60-ish, and Goldstein is not even approaching 60. Where will rape claimants be if their cases are to be heard by such men, at the option of the defendant? They will have no say whatever in the process. They will see a man opting for trial by a man alone, in an intensely gendered area. I am not alone in thinking that. In announcing the White Paper, ''Justice for All'', the Home Secretary said that he was very aware that issues to do with rape and domestic violence were highly gendered, and that Ministers, most of whom are men, needed to listen carefully to women in order to understand the essence of the problem. I pray the Home Secretary in aid, and say that the matters are delicate and gendered, and should not be left to men alone to decide. In particular, they must not be left to men who have previous convictions for getting matters wholly wrong, as the judiciary do. 
 I am not alone in identifying the problem: the Government have already legislated on it. The Sexual Offences Acts used to allow a wide discretion to judges on whether previous sexual history could be considered in rape trials, and they exercised that very widely indeed. In 1999, the Government narrowed that discretion and required that a series of steps be taken, because they appreciated the very difficultly that I point to. 
 What goes for rape goes, I fear, for domestic violence also. Again, the issue is intensely gendered and is one that many males think should be mediated between the parties to a marriage, and not the subject of intrusion by the public authorities at all. The somewhat old-fashioned judiciary—the men of the judiciary—have exemplified that view. There will be not only poor outcomes but a lack of confidence among women to come forward—the very opposite of what the Government have pursued.

Humfrey Malins: The hon. and learned Lady is being critical of the judiciary, and in some respects I understand that. However, is she aware that at the most recent judicial seminars for all practising and part-time judges in London, there have been lectures on the issue of domestic violence at which it has been explained to the judiciary that domestic violence is almost more aggravating than common or garden violence? The judiciary are taking that point on board now, even if they once did not.

Vera Baird: It is nothing but to the credit of the Judicial Studies Board that it has at last started to take such issues on board. The issue of domestic violence has been at the forefront of gender issues, to the disadvantage of the issue of rape. The quotations to which I referred are quite recent. I have asked a raft of questions about the education that judges receive in order to try rape cases. Although the Lord Chancellor replies that only the most sympathetic are able to do try such cases, he cannot point to any criteria. Furthermore, High Court judges do not have any compulsory training at all. The Judicial Studies Board does not apply to High Court judges—they can opt for it—but by and large they go on to the Court of Appeal and set the precedents that guide those beneath them. Such a system is next to useless, as it educates those at the bottom but not those whose findings they have to follow.
 I could go on for hours on the iniquities of the judiciary, but it is not only I who say that. It is a real complaint and a real danger. I urge the Minister to think again.

Mark Simmonds: It is a pleasure to make my first proper contribution to the Committee, and I do so with some trepidation, having seen the tremendous experience and expertise ranged on both sides. I have not practised or studied law in any detail, so I hope that the Committee will be gentle with me.
 Some serious issues are at stake in the clause. I agree with other hon. Members that it will undermine the criminal justice system and the public's confidence in it—and it may at times bring it into severe and 
 serious disrepute. As an outsider, I take note of what the experts say. It is pertinent that the Law Society and the Bar Council are unequivocally opposed to the clause. 
 I do not wish to repeat what has been said, but my hon. Friend the Member for Woking and the hon. and learned Member for Redcar (Vera Baird) both said that it is potentially a slippery slope and that we are only one small step away from the rights of the defendant being taken away. It will be much more difficult to explain what I would call bizarre, unusual and unexpected decisions. The public accept that such decisions occur occasionally—there are 12 minds working on a case in a jury trial—but if there is only one judge, he could appear tainted. At best, it could seem that the old boy network was at work; at worst, there could be a perception of corruption. 
 I do not suggest that our judiciary are susceptible to corruption: I am talking about the public's perception. We shall deal with that in a little more detail when we come to clauses 38 to 40, on jury tampering, but I suspect that one individual is far more easily got at than 12. 
 I reiterate what I said when intervening on the hon. Member for Southwark, North and Bermondsey (Simon Hughes). The public have tremendous confidence in the split between the Executive and the judiciary. There have been times when ''pressure'' has been brought to bear—I am going back a long way, for example to the train robbers, when political influence was supposedly brought to bear to ensure a conviction. I would not want the public to have the perception that judges could be politically influenced, but there is no chance of that happening with the jury system. I am afraid that it might happen if we go down this route. 
 The hon. Member for Southwark, North and Bermondsey said that jurors have a far greater breadth of experience and knowledge of life and come from a far greater spectrum of the community than one judge could. Judges inevitably come from a white, male, middle-class background; jurors obviously do not. There is also a greater propensity for jurors to come from a wider area of the community, and they will have a greater dispersal of prejudice. Again, a judge is inevitably going to have some prejudices, and that may influence some decisions. 
 I have great fears—I shall go into them in more depth when we reach clause 37—about the pressure applied to judges, particularly by the media in high-profile cases because a celebrity has been mentioned. The judge could end up being the person on trial: his background and that of his family could be explored. That might also touch on the point about the judge having prejudicial views that might influence his decision. Those are my fundamental concerns about the clause.

Stephen Hesford: I want to make a few short points in support of the clause. I have listened carefully to the opposition from a number of quarters on both sides of the Committee—it is important in these matters for there to be a measure
 of agreement, so it is incumbent on those of us who are not of the same mind to listen to one another. I am sure that the Minister has done so. It is telling that the hon. Member for Beaconsfield (Mr. Grieve) and my hon. and learned Friend the Member for Redcar used the same example, in order to make exactly opposite points. I see the hon. Member for Beaconsfield nodding. He mentioned that a paedophile would want to use the system to avoid a jury trial because the jury would not like to hear the circumstances of his activity, whereas my hon. and learned Friend used the argument the opposite way round. That cannot be right—

Dominic Grieve: The hon. Gentleman is wrong. The hon. and learned Lady and I approached the issue from opposite directions, but both approaches were legitimate. Her example was as valid as mine—people will play the system and will be perceived to be trying to do so for a particular benefit, whereas the present system does not allow anyone to contemplate such a strategy. That illustrates how the justice system is in danger of being brought into disrepute and question.

Stephen Hesford: I am quite unprepared to accept that. Under one of the arguments, the paedophile will be in front of a jury, which one or other of those arguments tries to avoid. I do not see that there is not a logical fallacy—there is.
 I submit that the hon. Member for Beaconsfield is being perverse in his argument. He does not like the clause because he favours jury trial. That is a perfectly proper position for him to take, although I do not agree with it. However, he goes on to try to undermine the clause by getting rid of the safeguards within it. Again, that is an illogical position.

Dominic Grieve: I do not think that it is illogical. Even if we got rid of the so-called safeguard measures, I would be very uneasy, but at least the clause would have a consistency to it that made it less likely to be called into public question. I accept that, even with the safeguards removed, it would still enable people to play the system. There is a double mischief involved: first, the manipulation of the system, and secondly the public perception of the system being manipulated. By including the exceptions provisions, we shall make the situation much more difficult, even though I understand why they have been put in. The flaw in the Minister's argument is that he includes them, having said that he thinks that trial by judge alone is equally good. He cannot mean that, because he has included the exceptions.

Stephen Hesford: I do not accept that. I hear the hon. Gentleman, but there is a lack of logic at the heart of his position. He can hold one view, but not both; the fact that he is prepared to argue both undermines his position of principle that there should not be a move away from jury trial.
 One has to look at this part of the Bill as a whole. I was not privy to the drafting or to the discussions about why it might be presented in this particular form, but it seems unlikely that those drafting the Bill, including my hon. Friend the Minister, would not have had in mind the need for balance. Clause 38 might be 
 seen as the nub of this part of the Bill, and it must have crossed people's minds that clause 37 is an attempt to achieve balance. The Minister will no doubt tell me whether I have understood the Bill's logic—he is not nodding at the moment—but it seems right to provide balance by including clause 37. Clause 38 essentially withdraws one of the defendant's rights, and he should have an equal opportunity to explore his possibilities. 
 To wrap up the point, no one has consistently argued how clause 36 can be fundamentally prejudicial to a defendant's interests if it is the defendant who elects trial by judge. The issue has been skirted round, but I do not follow that line of argument. Non-jury trials—judge only trials, involving lay magistrates or what were formerly known as stipendiary magistrates—take place in different courts at different times, and the principle is long established.

Dominic Grieve: The principle that a defendant may elect trial by judge alone is clearly not unfair to him. The unfairness in the clause creeps in through the exceptions, which may prejudice the interests of those who want to opt for trial by judge alone but cannot do so. However, we must consider the wider interest, which goes beyond that of the defendant. Is it fair or good for the criminal justice system to include the mechanism in the clause? As I hoped I had explained, the clause is in danger of causing serious injustice. Indeed, the hon. and learned Member for Redcar highlighted the injustice that may be done to victims, and we should consider that.

Stephen Hesford: Again, I hear what the hon. Gentleman says. To conclude, however, I am not at all persuaded by the arguments that have been arrayed against the clause. If it is pushed to a vote, I will support it.

Hilary Benn: This has been a genuinely interesting debate. It has been slightly shorter than that on the amendments, but both have aired a wide range of issues. Those issues were triggered by the clause, and they hang on the central question of the extent to which the right that the Government are offering the defendant to choose trial without a jury should be fettered in some way. That is the core of the matter.
 My hon. and learned Friend the Member for Redcar mentioned cases of rape and domestic violence, and she possesses greater expertise and knowledge in that regard than every other member of the Committee combined. She raised an interesting and important point. One could adopt a different approach and identify those types of trial in which the greater public interest should prevent the defendant from exercising the right in the clause. However, the Government do not want to do that. 
 I have another point for my hon. and learned Friend. In so far as there are problems about the extent to which different forms of trial achieve the justice that she seeks and in so far as public perceptions differ as to how different forms of trial achieve—

James Cran: Order. I wonder whether the Minister would address the Chair—not necessarily because I want him to look at me all the time, but because it is difficult for the Hansard writer if he continually talks to his Back Benches.

Hilary Benn: I apologise to you, Mr. Cran, and to the Hansard writer; I did not intend that to happen.
 In so far as the public perceive that the different forms of trial achieve different outcomes, as far as justice is concerned, it is incumbent on the criminal justice system to ensure that those differences do not exist. The point raised by the hon. Member for Woking, about the training now being undertaken, is significant. Whatever the type of trial, whether jury trial or trial by judge alone, it is important that the interests of justice, and the considerations that my hon. and learned Friend the Member for Redcar raised, should be equally served. 
 My hon. Friend the Member for Wirral, West (Stephen Hesford) put his finger on what, in essence, clause 36 is intended to do, which is to balance the competing arguments and interests that have been aired in this interesting debate. That is our intention—not because we are unaware of the issues that have been raised, but because we consider the clause the best way to try to resolve them. 
 I have a little more information now in response to the question asked in the earlier debate by the hon. Member for Southwark, North and Bermondsey about what happens in other jurisdictions where a parallel right exists, and the extent to which it is fettered.

Dominic Grieve: I had thought that it was my question, but it may also have been asked by the hon. Member for Southwark, North and Bermondsey.

Hilary Benn: I apologise if I did not give due credit for all the question's origins. Having undertaken to write to members of the Committee, let me just say that in the United States of America the right to opt for trial without a jury operates only with the consent of both parties and the judge, and in Canada it operates with the Attorney-General's consent, in the most serious cases. Those other jurisdictions, having wished to grant the right to defendants, have accepted that it should be fettered in certain circumstances. That strengthens the argument that fettering the right is not unusual or unfair.
 The hon. Member for Beaconsfield talked at the beginning of the stand part debate about defendants availing themselves of the protection of the clause—I hope that I have quoted him correctly. He used an interesting form of words, because the clause is intended not as a protection, but to offer a choice. Like my hon. Friend the Member for Wellingborough (Mr. Stinchcombe), I do not think that the Committee should have difficulty in allowing the choice, subject to subsections (6), (7) and (8). 
 I was puzzled that the argument of the hon. Member for Southwark, North and Bermondsey zigzagged between the view that jury trial was needed to protect the defendant, which I do not 
 contest for a second, and the view that it was needed in the public interest, whether the defendant wanted it or not. He advanced both arguments. Defendants and their legal advisers can be trusted to make their own decisions about when jury trial is in the defendant's interest. Nothing in clause 36 would prevent them from taking the necessary considerations into account. 
 I accept entirely the point that the hon. Gentleman made using the example of the Ponting case. Indeed, going back in history, it was the jury system that led to a re-evaluation of the law on capital cases. Juries refused to convict people, since they regarded the penalty then on the statute book as unfair. He is right about protection in the relevant circumstances, but I would trust the defendant to have regard to his or her own interests in deciding whether to exercise the right under the clause.

Simon Hughes: I hold both views of the matter. I see it from the point of view of the interest of the criminal justice system, and secondarily from that of the interest of the defendant. To pick up on the point made by the hon. Member for Wirral, West, the reason why a defendant may need looking after, as it were, is that he may be the one person who has never before been in the circumstances in question, and may not be able properly to evaluate all the considerations. Judges, lawyers and other people involved will be very familiar with the situation, but the defendant may not make the right judgment under all the pressure of the circumstances.

Hilary Benn: I hear that argument, which reinforces the importance of appropriate advice in making the decision. However, the same argument would apply in relation to the existing right of choice in either way cases. I do not accept it as an argument against giving defendants the right to a choice.
 Several hon. Members have referred to the question of the broader public interest and my hon. Friend the Member for Bassetlaw (John Mann) gave an example, in relation to the Leeds United case, that might or might not fall within clause 36(8). The subsection provides for the relevant considerations to be taken into account. It is a matter for the judge, but it is also appealable under clause 39, which would provide an opportunity for all the issues to be aired. On the point about freemasons, it is improper and illegal to attempt to subvert the criminal justice system in that way and would remain so under the clause. 
 We need to be slightly careful about where the argument of the hon. Member for Southwark, North and Bermondsey might take us. If we accepted all that he said, we might be forced to the conclusion that we should abolish the right of election in either way cases and decide that nothing could go before the magistrates, but everything should go before a jury. Every argument that he advanced would apply equally in that context. It is important, in deciding that the individual should be given the right under the clause, not to accept that justice from a judge alone is of lesser quality—not least for the reason I gave earlier, that many judges already dispense such justice regularly.

Simon Hughes: I understand the either way argument. Parliament has had other debates of this kind, when considering whether to remove the right of election. My view is that it is perfectly proper to consider, at any stage, what should be included in the category of the most serious offences. What is wrong is to assume that an entire band of offences should suddenly switch from one to another. I am always open to the argument that an offence is in the serious category, where the presumption will automatically be jury trial.

Hilary Benn: Perhaps I should have realised that the hon. Gentleman would accept my challenge in that spirit. I hear what he says.
 On the matter of the timing of the choice, I reaffirm that we propose to establish time limits by means of the rules of court. We do not want judge shopping to go on when people exercise the right under the clause. 
 Finally, I want to deal with the one other substantive argument that has been made—by my hon. and learned Friend the Member for Redcar and the hon. Members for Woking and for Boston and Skegness (Mr. Simmonds), from whom we heard for the first time in this Committee and whose contribution was very welcome. I can only reiterate that the slippery slope or thin end of the wedge argument is not appropriate. 
 Jury trial for serious offences will remain the norm, and all that the clause is intended to do—subject to the safeguards of subsections (6), (7) and (8), which we have debated at great length, and which are aimed at balancing the different arguments that we have heard in the Committee—is to give defendants the right to decide whether to be tried by a jury or a judge. I bring the argument back to Sir Robin Auld's original recommendation and the fact that the provision was widely welcomed when it was first published, and has the support of the Home Affairs Committee.

Stephen Hesford: May I correct something that I said in my speech? I referred to clauses 37 and 38, but I meant clauses 36 and 37.
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 12, Noes 5.

Question accordingly agreed to. 
 Clause 36 ordered to stand part of the Bill.

Clause 37 - Application by prosecution for

Simon Hughes: I beg to move amendment No. 205, in
clause 37, page 24, line 29, leave out from 'he' to 'but' in line 30 and insert 
 'may, subject to subsection (6), make an order— 
 (a) specifying that the trial is to be conducted with a smaller jury consisting of eight jurors all of whom have indicated their willingness to serve on a potentially complex and long case, 
 (b) appointing up to two special advisers to assist the jury in understanding any arrangements, transactions or records of a financial or commercial nature or which relate to property and which relate to the trial, or 
 (c) specifying that the trial is to be conducted without a jury.'.

James Cran: With this it will be convenient to discuss the following amendments:
 No. 237, in 
clause 37, page 24, line 29, leave out 'must' and insert 'may'.
 No. 238, in 
clause 37, page 24, line 32, leave out 
 'the complexity of the trial or'.
 No. 239, in 
clause 37, page 24, line 32, leave out 
 'or the length of the trial'.
 No. 240, in 
clause 37, page 24, line 32, leave out '(or both)'.
 No. 272, in 
clause 37, page 24, line 32, leave out from second 'trial' to end of line 38 and insert 
 'is likely to be such that— 
 (a) it may place an excessive burden upon the life of a typical juror; and 
 (b) after reasonable efforts have been made, no jury can be found for which it would not be an excessive burden.'.
 No. 206, in 
clause 37, page 24, line 34, leave out paragraph (a).
 No. 241, in 
clause 37, page 24, line 35, leave out 
 'in the interests of justice'.
 No. 273, in 
clause 37, page 24, line 39, leave out from first 'that' to 'will' and insert 
 'the length of the trial'.
 No. 243, in 
clause 37, page 24, line 43, leave out 'or commercial'.
 No. 244, in 
clause 37, page 24, line 43, leave out 
 'or which relate to property'.
 No. 245, in 
clause 37, page 24, line 44, leave out 'nature or'.
 No. 207, in 
clause 37, page 25, line 1, leave out subsection (6) and insert— 
 '(6) Such an order may not be made unless— 
 (a) all steps which might reasonably be taken to reduce the complexity or length of the trial have been taken, 
 (b) the judge is satisfied that after such steps have been taken conditions (1) and (2) above continue to be met, and 
 (c) the judge is satisfied that such an order will not compromise the defendant's right to a fair trial.'.
 No. 274, in 
clause 37, page 25, line 3, leave out 'complexity or'.
 No. 246, in 
clause 37, page 25, line 4, leave out subsection (7).
 No. 208, in 
clause 37, page 25, line 5, at end insert 'or the defence'.
 No. 254, in 
clause 37, page 25, line 6, at end add— 
 '(8) the length of the proposed trial shall not be considered by the judge unless 
 (a) the Prosecution and Defence have jointly advised that the trial is likely to be longer than 12 months, and 
 (b) the Judge takes the same view, and 
 (c) the Judge is satisfied that it is not reasonably practicable to impound a Jury.'.

Simon Hughes: We are now on to the debate on whether jury trials could be done away with after application by the prosecution for judge alone trials in complex or lengthy cases. The amendments from both Opposition parties represent an attempt to mitigate that. I am still not persuaded of the merits of the clause, and like other hon. Members I expect to vote against it when the time comes.

Dominic Grieve: Some of the amendments were tabled by my hon. Friend the Member for Hertsmere (Mr. Clappison), but he is not here because he is unwell. I mention that because he would not want the Committee to think him discourteous for not turning up to debate his amendments.

Simon Hughes: I hope that none of us will think that.
 The Liberal Democrat amendments seek to restrict applications for trial without jury in such cases. Amendment No. 205 suggests two obvious ways, which have been widely canvassed, to deal with the fact that long trials can be inconvenient to juries. 
 The experience of those who try long trials, especially complex fraud cases, and of the Serious Fraud Office, which manages most cases of that sort, is generally successful. It may surprise the public to hear that there is an 86 per cent. conviction rate. The problem is not public understanding but the practical problem of whether it is convenient to have to be in court week after week in a case that may go on for 18 months. I understand that the Government were motivated to make the change not because of the inability of juries to cope with long cases intellectually or for other reasons, but because of the practicality of dealing with such long cases. The amendments therefore seek to address the practical question of how to maintain the jury principle in a way that does not make jury service too difficult. 
The first suggestion in amendment No. 205 is that instead of having a trial without a jury, the judge could order that the case be 
heard by a smaller jury of eight jurors, and that those jurors would have to indicate their willingness to serve on a potentially long case. The second suggestion is that two special advisers could be appointed to help the jury to understand financial or commercial matters.
 I am keen to promote the representative nature of the jury. It would not necessarily lead to a less representative jury if we had to establish whether potential jurors were able to hear a long case. For instance, the fact that people may be retired does not necessarily mean that they are elderly: they may have retired at a relatively young age. Those who are not working may be unable to do full-time or even part-time work because of illness or disability, but they may be willing to serve. On the other hand, it may be inconvenient for some people to serve on a jury in a long case for family, personal or career reasons. 
 The Government are keen that there should be far fewer exemptions from jury service. They want everyone to be included—for instance, GPs should not be able to get off jury service as they have in the past. We need a combination of factors. First, we need to ensure flexibility for those called to jury service—they should be able to say, ''I cannot do it now, but could manage it from next June onwards,'' or, ''I am in difficulty between now and Easter, but not afterwards.'' Secondly, if the risk is that 12 people could not easily be found who could serve for a year, we need to be able to ask potential jurors if they could serve for that long. In either case, we would still ensure a representative jury. 
 The other objection to jury trial is that cases might be too complex—to be honest, many people find book-keeping complex. If so, we need other people to help the jury. We cannot ask the judge, who may not be an expert, and we cannot ask the lawyers, who may occasionally have an interest in confusing matters. We need someone—perhaps an accountant or a book-keeper—to be able to tell the jury what a balance sheet means and, as an independent adviser, give an interpretation of the figures. That is one way of dealing with the concern over complexity.

Desmond Turner: I am a complete layman, but it appears that clause 37's biggest difficulty is precisely the reverse of the argument that was made under clause 36 that the defence would play the system and choose whatever mode of trial was to their best advantage. In clause 37, the prosecution have the opportunity to do exactly the same. They can attempt to choose the mode of trial that would best increase their chances, and thereby disadvantage the defendant. I see nothing in the clause or the amendments that provides any comfort or protection for defendants.

James Cran: Order. I appeal to Committee members, as I did this morning, to make short interventions. If speeches are required, all that has to be done is to catch my eye.

Simon Hughes: I am grateful, Mr. Cran.
 I share the hon. Gentleman's views. I prefer for there not to be that choice. One job that we always have to do in opposition, as he will discover—

Desmond Turner: Not for a long time.

Simon Hughes: Some of us hope that it will happen sooner than he may wish, and in any case the hon. Gentleman can be in opposition sitting where he is. That is another option, but far be it from me to give him that advice.
 We must seek to ameliorate the situation. I know that we would rather get rid of the clause, but the process up and down the Corridors sometimes means that one does not get all that one wants, and there must be a compromise. I am trying to improve matters without breaching the point of principle to which the hon. Gentleman referred. 
 It has never struck me that there is a theology behind there being 12 on a jury, although I do know the theology behind the number 12. In this country, I am not sure where the idea to have 12 people on a jury came from. It may have derived from the fact that there were 12 disciples, and therefore somebody felt that that would be the right grouping of people to summon to decide on matters of justice. We moved on, and majority verdicts were introduced—originally 11–1, now 10–2. Given that, it strikes me that there is a perfectly reasonable argument to have a slightly smaller jury. No magic surrounds a jury needing 12 people to make it perfectly representative. Opinion polls could no doubt advise us on that matter.

Humfrey Malins: May I reinforce the point by saying that juries in France usually consist of nine people? There is no especial magic in the number 12.

Simon Hughes: There may be some deep psychological and historical reason why different numbers are chosen. We can only speculate on that.
 Amendment No. 206 would leave only one reason why the prosecution could apply for a trial to be conducted without a jury. All the amendments are lesser alternatives—they are second preference to removing the clause—but No. 206 would mean that the only condition that could justify not having a jury trial would be that it 
''would be likely to place an excessive burden upon the life of a typical juror.''
 The amendment would get rid of the argument that to hold a jury trial would be so burdensome that a judge only trial would be 
''necessary in the interests of justice'',
 not least because some of us argue that that is an evaluation one cannot make, and that justice is better served by the conventional jury trial. 
 Amendment No. 207 would remove the criteria that the Bill requires the judge to fulfil. Those criteria are sensible as far as they go. If the Bill becomes law, the judge will be required to work out whether the two conditions set out in subsection (4) are fulfilled. 
 Subsection (6) states: 
''In deciding whether or not he is satisfied that both of those two conditions are fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of the trial.''
 That is sensible. A judge might think of ways of making the trial easier. Increasingly, courts use summaries of facts. They use other documentation supplied by agreement of both sides to make it simpler 
 to understand lots of paperwork. I welcome that. Decisions are also taken to make the cases shorter. Sometimes they have longer sitting times so that people do not have to spend so many days but have as many hours. Sometimes they have shorter lunch breaks. There are various ways in which it can be done. Often a number of specimen counts are chosen rather than having every possible count on the charge sheet. 
 We want to beef up the preconditions for ordering a non-jury trial in a serious, complex or lengthy case. First, the judge would have to have taken reasonable steps to reduce the complexity or the length of the trial. Secondly, he would have to be satisfied that it was necessary not to have jury trial to make it less burdensome. Thirdly, he should be satisfied that the defendant's interests would not be compromised. That ties into amendment No. 208.

Mark Simmonds: Before the hon. Gentleman moves on, could he explain why he believes that if the trial were to be presided over by a judge, as opposed to having a jury, it would shorten the trial procedures and make it less burdensome for those still involved in the trial?

Simon Hughes: I believe, and I stand to be corrected by hon. Members with experience, that if there is a jury, it generally takes longer for the points to be made in court. Lawyers on both sides feel obliged to spell things out at greater length—whether that is necessary is a separate matter. Moreover, the jury is not allowed to do what the judge does. When a judge is in proper control of the case he will frequently say, ''Thank you very much, Mr. Malins. I have taken the point.'' He will then stop everyone else repeating, elaborating on or extending it. There is a significant difference.
 In evidence giving, the case can be shortened by having a judge and no jury by about a quarter to a third, and in submissions to the court by about the same amount. I bow to the evidence if there is any. I can see the merit in terms of speeding up the wheels of justice, but the price we will pay will be the loss of the security of the verdict and all the benefits of a jury trial.

David Cameron: Is there not a danger that complex fraud cases could be made longer rather than shorter? Currently, in trials with a jury the prosecution and the defence always try to keep it simple and straightforward. In a judge only trial the lawyers might run away with themselves in complexity with ever increasing complex papers and arguments.

Simon Hughes: That is a risk. Professionals only trials have distinct disadvantages. Lawyers with a particular expertise in serious fraud might talk in the language of acronym, summary and technicality. Not only might that become more obtuse and obscure, but the defendant might lose the plot. The public and those who report the trial would be far less likely to understand the case. In the Saunders case, for example, there was a public interest in the case of a great big international company, fraud and so on being reported accurately. To put it bluntly, it is
 important that legal affairs correspondents, who may not necessarily be lawyers, can report in simple terms what has happened to someone's investments, shares or business. There are serious justice issues in making sure that there is an obligation on lawyers and on judges to speak in the language of ordinary people. The truth is that if cases are well prepared they are easy to understand; it is when people have not done the preparation that they use technical language to hide the fact that they do not know what is going on.
 Amendment No. 208 would change clause 37(7), the wording of which seems slightly unjustified. It reads 
''But a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution.''
 It strikes me that a clause should be even-handed and not disadvantage either the prosecution or the defence. Amendment No. 208 would provide that even-handedness. I hope that colleagues will consider these ways of improving the system if we change the principle, although I hope that this House and the other House will not change that principle.

Dominic Grieve: I listened with care to the hon. Gentleman. In moving amendment No. 205 he raised an interesting topic for discussion about improving the clause. I will return to it at the end of my comments. Our amendments run through the clause subsection by subsection to identify the key areas that the Committee may like to consider in it.
 I, too, believe in the validity of jury trial. It should not be pushed aside without good and sufficient reason. That said, I am pragmatic: if good and sufficient reason can be shown and there are no serious impediments to justice being done and being seen to be done, I am prepared to keep an open mind. 
 It is unclear, apart from the burden on a jury, which I will return to in a moment, that this is necessary for justice to be done and to be seen to be done. Statistics speak for themselves: the conviction rate at the Serious Fraud Office is about 80 per cent. I do not accept that it is beyond the capacity of juries to return understandable, coherent verdicts in long and complex trials. Cases such as the Maxwell case are sometimes bandied about, but they support my argument rather than undermining it. The evidence as it emerged and was commented on amply supported the final decision of the jury, even if it was not the one that might have been expected at the outset. 
 In any event, long and complex trials, as the hon. Gentleman rightly said, have their own problems. A wise prosecutor tries as much as possible to avoid them. Interestingly, the Government take a different view and clearly think that long and complex trials may be very necessary in the interests of justice, so they want to get rid of juries to enable such trials to happen more smoothly. Hence, the provision in clause 37(7) that a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution. 
 My first observation on reading the clause is that its provisions may be intended to cover long and complex fraud trials. As drafted, however, it offers the possibility of non-jury trials for a much wider scope 
 of offences than just fraud cases. I say that to the Minister, and shall illustrate it as we proceed. 
 I specialise in health and safety at work, an area that would undoubtedly be caught by the provisions because the trials are often lengthy and complex, and arguably often concern property, in the sense that an incident took place on property. I do not know whether the provisions are intended to cover such cases. However, I think that there is the potential for that. If so, I point out to the Minister, as an illustration of my point, that the Court of Appeal and the House of Lords have repeatedly issued dicta that the Health and Safety at Work, etc. Act 1974 is, by its very nature, one for which it is for juries to decide the questions of fact. The burden of proof can be reversed and is not the ordinary proof beyond reasonable doubt. Given that, the jury is the essential safeguard between the defendant and the unfair prosecution that might be visited on him. 
 Amendment No. 237 is a straight ''may'' and ''must'', and would remove the necessity. I accept that the Minister could argue that it is a wrecking amendment. Although it would still allow a trial to take place without a jury, it would leave a residual discretion to the judge to say that a jury trial was necessary, notwithstanding the drawbacks. 
 Amendment No. 238 concerns the complexity of the trial, which brings me to my point about complexity as opposed to length. Subsection (4) makes it clear that one can go for trial by judge alone because of either length or complexity. I accept that the two might go hand in hand in most cases. However, health and safety trials do not normally meet the criteria of great length—though I was involved in one that went for six weeks. I understood, from the White Paper and elsewhere, that we were talking about trials that last for five, six or nine months. Health and safety trials are undoubtedly complex, however, because they often require that multiple expert reports be listened to, and there might be a need for lots of technical documents and the instruction of a jury, frequently in engineering, electrical engineering and other scientific disciplines. It might be extremely complicated to explain to a jury why someone failed to look after his employees. Such matters undoubtedly satisfy the complexity test, but I have never heard it suggested in my field of practice of health and safety at work that it was necessary to dispense with the jury. 
 Why is there a complexity provision? If a trial is merely complex, but not lengthy, what burden is placed on the jury that the Government consider impossible for them? What evidence is there that justice cannot be done because of complexity, as opposed to length? I understand the argument about length. What is the argument on complexity? We should break the matter down into component parts. There is at least an argument that complexity has nothing to with the issue, and that the problems spoken about in the White Paper are those that relate to length, and volume of material. 
 Amendment No. 239 is designed to home in on the length of the trial. A long trial might not be complex at all. If I have understood the subsequent provisions, it appears that the burdensomeness might spring from 
 length. Even if it is lengthy, a trial can be perfectly comprehensible. The key area for the Committee to consider is whether the Government can adduce serious, credible evidence that, from a potential panel population of possibly 25 million or 30 million people—I do not know the exact number, but it must be pretty vast—between the upper and lower age limits, the judicial system cannot produce jurors to try cases. If the only issue is length, I am satisfied that one can always find jurors. I have never known a case in which it has not been done. One might start with a panel of 200, but that does not matter. I have not heard it said that the jury panel with which a court has ended up is a group of unemployed halfwits. I accept that there are issues concerning juries, but I find the message that is being pushed by the Government extremely unsatisfactory.

Humfrey Malins: Patronising.

Dominic Grieve: Indeed. I would like to draw the Minister out. If that is his anxiety, we need to know about it.
 Amendment No. 240 is a consequential amendment, which we need not go into. I should like comment on amendment No. 272, which was tabled by my hon. Friend the Member for Hertsmere, who is not here. It is rather sensible. No jury can be found for which it would not be an excessive burden. That brings us to the nub of the issue. Can the Minister bring to the Committee good evidence that there are instances in which no jury can be found for which it would not be an excessive burden to do a six or nine-month case? I am not sure about the lengths of the longest criminal trials to have taken place in this country. It would be useful to know how many trials lasting more than six months there have been in the past year or two. That would be a helpful indication as to the extent of the problem, so that we can decide whether the solution before us is the right one. 
 Amendment No. 273 is solely about length of trial. Then we come to amendment No. 206, which concerns burdensomeness. Subsection (4)(a) and (b) say two similar but slightly different things. I seek the Minister's help as to what the relationship is between them and how they differ. They bear repetition. They concern instances in which the complexity or length of a trial, or both 
''(a) is likely to make the trial so burdensome to the members of a jury hearing the trial that it is necessary in the interests of justice for the trial to be conducted without a jury, or
(b) would be likely to place an excessive burden upon the life of a typical juror.''
 I am not convinced that I understand the distinction. I think that paragraph (b) is saying that there is no problem, but it would be so irksome to the juror that there ought not be a jury and paragraph (a) is saying that not only would it be irksome but, in some way, the quality of justice would suffer as a result. Even if I am right, I am not convinced by the argument. Can the Minister explain the relationship? 
 I would like to draw the Minister out a little on amendment No. 241 and the ''interests of justice''. The interest of justice is that there should be a fair verdict. Is he saying that the current system is not producing 
 fair verdicts? If not, the phrase should be removed from the clause. It is really all about the convenience of jurors. 
 Let us be honest, many things are burdensome. It is burdensome to be called up for jury service, though it is a hugely important function for the average citizen and we should celebrate it more than we do and afford it greater recognition within society. It is one of the key elements of participatory democracy. We often speak about devolution in that context, but jury service is one of the best examples of real participatory democracy that I can think of. 
 I am unconvinced by the phrase ''the interests of justice''. Will the Minister explain how placing a burden on the juror does not serve the interests of justice? On that basis, we could get rid of jury trial altogether: it is bound to be burden on anyone who is called up. The Government do not really mean ''the interests of justice'', so we should call a spade a spade and take it out. 
 Amendment No. 244 brings us to ''relate to property''. The Minister is laughing, and I am glad to provide him with some mild entertainment in the course of a long afternoon sitting and I take it as a mild compliment. However, once one focuses on the detail, it becomes a serious issue. Part of the clause is simply verbiage to decorate an otherwise unpleasant and uneasy change. 
 I referred to the famous amendment No. 244 earlier. Under subsection (5)(a), the complexity and length of a trial is attributable 
''to the fact that the issues likely to be material to the verdict of a jury hearing the trial relate to arrangements, transactions or records of a financial or commercial nature or which relate to property''.
 If in a health and safety case a victim has died falling down steps or been crushed by a machine, would it not fall squarely under subsection (5)(a)? Arguably, all sorts of other criminal cases might do so, too. Do we really want that definition, or should it relate to commercial transactions affecting property? Amendment No. 243 would leave out the word ''commercial'', so will the Minister explain what it means in this context? 
 Amendment No. 274, tabled by my hon. Friend the Member for Hertsmere, would leave out the word ''complexity'', so subsection (6) would refer to reducing only the length of the trial. That takes us back to the question of the true motive. 
 Amendment No. 246 would remove subsection (7), which deals with disadvantaging the prosecution. My experience of fraud trials is not enormous, but I have done some. I remember an 18-count trial in Norfolk, in which I represented a solicitor accused of mortgage fraud. We got the indictment severed in three, and the judge said that an 18-count indictment was ludicrous, not because of the comprehensibility to the jury, but because of what the prosecution wanted to show. The judge did not aver it in open court, but subsequently took the view that if the defendant was convicted on one indictment, it would be difficult to resist 
 conviction on the others, and that if he was acquitted on one, the prosecution might want to consider the matter further. In fact, he was acquitted on the first and second indictment, and the prosecution then dropped the third, greatly to the saving of the public purse. 
 I am all in favour of the severance of indictments, although I remember the prosecutor being upset about it because the massive product that he was going to present had to be compartmentalised. In fact, it did him a good turn. He had lost sight of the wood for the trees and, in this case, of the fact that most of the witnesses were in league with the defendant in the mortgage fraud. There had been no fraud, because they had never been misled. They were the building society managers who had been lending the money on the defendant's say so. 
 I point that out because it is my experience that large trials are far from an advantage to the prosecution. Distilling issues into small compartments is enormously helpful to everyone, including the prosecution. However, I agree with amendment No. 208, because if the change is not to be to the disadvantage of the prosecution, it should not be to the disadvantage of the defence either. 
 Amendment No. 254, to which my hon. Friend the Member for Woking will speak, concerns the 12-month rule for a trial. How long is a long trial? We have to grasp that nettle and decide how to define it. Otherwise, I fear that there will be many problems. 
 I apologise for taking up too much of the Committee's time, but I have identified important points on which I want the Minister's answers. It would be easy to be carried away with the flow of rhetoric that appears in clause 37, but it masks the Government's real intention. They believe that lengthy trials are a bore for the prosecutor and the judicial system and would much rather have them tried by judges, although there is no reason from the point of view of fairness why juries should not be involved.

Humfrey Malins: I do not like clause 37. We will debate the issues of principle involved on clause stand part, but I want to ask the Minister some questions.
 If there is a mischief that the Minister is seeking to cure through the clause, what is it? What research has been done to prove that there is a problem? What soundings has he taken from the judiciary, the Bar Council and others intimately involved in trials about the merits of his proposals? How many juries have been discharged because of the case's complexity or length, and how many cases have not been able to start because of the impossibility of empanelling a jury? 
 If there are dozens of examples of each case, one will have more of an understanding, particularly if it is backed up by detailed research among the judiciary and legal profession. That would provide more understanding of why the clause has been included. However, until we get that research, we cannot be particularly pleased with the clause, not least because it is another move to take away jury trial from a defendant. In my experience, there are few, if any, cases that cannot be properly turned into language 
 that is understandable by jurors and properly dealt with in a reasonable time. 
 Amendments Nos. 238, 240 and 254 concern two aspects: complexity of trial and length of trial. I echo the question of my hon. Friend the Member for Beaconsfield about how long is a long trial? Is it six, nine or 12 months? Is it merely an arbitrary decision for a judge to take in each case? Amendment No. 254 would insert a provision to tighten the position on the length of a trial by saying that it should not be a deciding factor unless first, the Crown and the defence have jointly certified that the trial will last for more than 12 months, secondly that the judge takes the same view, and thirdly that the judge is satisfied that it is not reasonably practicable to empanel a jury. 
 Otherwise, we would have the vagueness of counsel saying that the case will take a long time, and therefore would be an ideal case in which to have no jury. The judge would then ask how long the case would take, and counsel for the Crown would say that he did not know because he did not know how many witnesses the defence would call, but believed that the Crown case could take a few months. If the defendant was then obliged to say how long his case would last, he might come up with a figure that was different from the Crown barrister's. 
 The point of my comments is that certainty is needed in such situations. A judge in court No. 1 might say that a case looked as if it would last for six months, based on what counsel had said, and that therefore he would wheel it away from the jury and give it to another judge sitting alone. Meanwhile, in court No. 2 a judge might decide that a case looked interesting, and decide to take it even though its duration had been estimated at 10 or 11 months. There is no certainty in using the phrase, ''length of a trial.'' Where is the evidence that the length of a trial in the past has resulted in a jury being discharged or being unable to return a verdict? 
 There is a further issue that I should like to raise. I do not like the phrase 
''excessive burden upon the life of a typical juror.''
 The more I look at that phrase, the less I understand what it means. What is a life? Are the Government saying that the life of a juror is a 24-hour-a-day life? Is the phrase implying that the excessive burden falls on the juror during the trial hours—10 till 4 pm, with substantial breaks—or that the burden is such that the life of the juror is deemed to be 24 hours a day? Are members of the jury taking home with them too many pressures and problems? It is not a happy phrase. 
 I would consider a burden on the life of a juror to be trying a murder or drugs case in which there are serious threats of tampering with the jury or their family members. As a jury member it would be a burden on my life if I was walking to court every day concerned that I was being followed by a friend of the defendant. 
 The issue of complexity has been covered already. It is a good thing if counsel on both sides can reduce the evidence into a form that is easily comprehensible. That is done day after day in fraud cases. I forget who it was—I will be forgiven, I hope—who suggested that 
 in cases of fraud heard by a judge sitting alone there might be a temptation for everyone involved to become increasingly complex in their arguments, so that eventually the judge might be overwhelmed by the complexity of the matter, and might have to discharge himself or herself because he or she could not understand the arguments. There is thus also a danger of going too far the other way. 
 If I had come across dozens of cases over the years in which it was too difficult for the jury to comprehend the documentation, or in which it was impossible for counsel for the Crown to reduce that documentation to comprehensible elements, I would understand this provision. If I had come across cases over the years, even anecdotally, in which jurors could not continue because of the burden of time, I would find it a little more acceptable. However, as things stand I have severe doubts on the issues of complexity and length. 
 On amendment No. 244, I assume that the Minister will confirm that the word ''property'' in clause 37(5) refers to real property rather than intellectual property, intellectual property being entirely different from real property, although the two are different aspects of the same matter. Perhaps we shall receive confirmation on that from those who are in the know, but let us assume that it refers to real property, namely a building. This is very strange. The clause states: 
''The second condition is that that complexity . . . will be attributable—
a) to the fact that the issues likely to be material to the verdict . . . relate to property''.
 I do not know what that encompasses— 
 Sitting suspended for a Division in the House. 
 On resuming—

Humfrey Malins: I was talking about property and amendment No. 244. Put simply, a complicated case involving conveyancing fraud relating to a property that might last for only eight days could, under the provision, be taken from a jury. The Minister will correct me if I am wrong, but it could equally be argued that a complicated case involving burglary of domestic property relates to property. Will the he explain precisely what he means? There is a danger that the prosecution will be tempted to consider it easier to remove more and more cases from a jury and place them in the hands of a judge.
 There are many issues to which we should return on clause stand part, which I look forward to discussing. However, I hope that the Minister will respond to the issues that I raised in relation to complexity, length and property. 
 I gather that the hon. Member for Southwark, North and Bermondsey, who spoke to amendment No. 208, tabled it five minutes before I did, but we had the same idea of a level playing field. I asked the Minister what might disadvantage the prosecution, and what might disadvantage the defence. Will he explain why subsection (7) does not include the words ''or the defence''?

Hilary Benn: The amendments partly demonstrate, and I hope that all members of the Committee acknowledge, that the criminal justice system has a problem with juries and long and complex fraud and fraud-related trials. Two recent high-profile cases make that point. The first was the Blue Arrow case in which the Court of Appeal commented that the case had become almost unmanageable and that there was a significant risk of a miscarriage of justice resulting from the volume and complexity of the issues presented to the jury. In the case of Regina v. Levitt in the following year, the trial judge ruled that a substantial body of evidence should be excluded, not because it was irrelevant or inadmissible but because it would be unmanageable for the jury and make the trial unacceptably long.
 The hon. Member for Woking asked for evidence. The two cases are part of the evidence, but I also refer him to the Auld report, which he will have read carefully. In paragraphs 173 and 174, Sir Robin Auld clearly and cogently set out the reasons why the change was deemed necessary. Long and complex fraud and similar trials can last for months. The average length of trials prosecuted by the Serious Fraud Office is now about six months. Such trials place an excessive and unreasonable burden on the members of the jury. They also make it difficult to ensure a representative jury. Judges are understandably sympathetic to those seeking to be excused from serving on a long trial on the grounds that they cannot afford to have their working and personal lives disrupted for months on end. 
 I accept that jury service is an important civic duty, but there must be proper limits to the imposition that it is right to make on jurors' lives. Considerable efforts have been made in the past to assist the courts in managing the trial process in such cases. The Criminal Justice Act 1987 implemented a number of recommendations made by the Roskill Committee, including the establishment of the Serious Fraud Office. The preparatory hearing regimes in the Criminal Justice Act and the Criminal Procedure and Investigations Act 1996, with their emphasis on case management and the presentation of issues to the jury, are working well. 
 However, there continue to be a few cases, such as the ones that I have just cited—they are only a few and it is important to get the clause in perspective—that are so lengthy and/or complex that they stubbornly the resist the best efforts of all involved to reduce the burden on the jury without imperilling justice. I do not agree with the argument that severing trials is not a bad thing. The need to sever trials, pare down justice and reduce judges in serious fraud and similar trials to make them manageable for the jury means—this is the point at the heart of subsection (4)(a)—that the full criminality in such cases is not exposed, to the detriment of justice. That cannot be right. 
 That is the answer to the point made by my hon. Friend the Member for Brighton, Kemptown (Dr. Turner). This is not about disadvantaging defendants but about ensuring that the full case is heard and the full extent of the alleged criminality is exposed to the trial's consideration without excessively burdening 
 juries. I point out that the Home Affairs Committee supported the proposal.

David Cameron: The Minister is making the point that the Government want to change the rules on jury trials because of complex fraud cases. He is trying to make the case that there is a difficulty with such cases. Does he accept that there is scepticism throughout the Committee, because this is not the first time the Government have tried to limit jury trial? This is not the argument that they advanced on previous occasions. Many of us think that this is an attempt to have another bite at the cherry from a different point of view.

Hilary Benn: Of course I am aware of the scepticism, but neither I nor the Government are responsible for it. All one can do in Committee is to judge the proposal on its merits. I am trying to advance on its merits the case for why the change is sensible. It is a long-standing problem, and as Sir Robin Auld said, it is growing worse. Efforts have been made to address it in the past but the difficulty continues. If the full extent of the alleged criminality cannot be brought out because of the steps taken to make the case manageable for the jury, are the interests of justice served? That is the argument for the change.
 I hope that hon. Members will not hear with heavy hearts that I now turn to the first of 17 amendments to clause 37.

Humfrey Malins: The Minister may have forgotten that I asked specific questions about what research the Government have done among the judiciary, the Bar and the Serious Fraud Office on these matters, and how many cases have been discharged because of complexity or length in the past year or two. That would give us some background.

Hilary Benn: I do not have to hand the answer to the second question about the number of cases; I undertake to look into it and, if that information is available, to provide it to the hon. Gentleman. The answer to his first question is covered extensively, which is why I made particular reference to paragraphs 173 and 174 of the Auld report. Sir Robin Auld describes at considerable length the consultation on the consideration of the case for changing the current arrangements in the criminal justice system over a number of years.
 On amendment No. 205, the hon. Member for Southwark, North and Bermondsey recognised that trials without jury may be appropriate in these cases, but he proposes other solutions. It is not clear to me that the problems that I have identified would be significantly more manageable if we went for a jury of eight as opposed to 12. The numbers issue does not go to the heart of the question of the damage that can be done to a trial by seeking to make it digestible for a jury, or of the impact that it has on the lives of jurors themselves. Changing the number of jurors would not address those issues. 
 There is also a risk that the jurors serving on such cases might be self-selected by virtue of the fact that they were able to do that. That raises a concern about departing from the principle that jurors are randomly 
 selected from the population local to the Crown court in question. Although no one would claim that the jury system is perfect, its representative nature and that random selection are important considerations. That goes to the heart of the problem, which is why the change is proposed. Those two principles would be compromised by the proposals in amendment No. 205, or by simply saying, ''Never mind—as long as you can find some jurors who are prepared to give up a year or more of their lives, it is okay to carry on.'' I do not accept that argument. 
 Amendment No. 205 also proposes that the jury should have a number of special advisers—a phrase for which I have particular affection, because of my former employment. The idea is interesting, but as the defence would have no way of examining the advice that the advisers gave the jury in open court, I am not attracted to it. 
 Amendment No. 237 repeats the ''may'' for ''must'' argument that we had in debating the previous clause. I resist it for the same reasons that I advanced on that occasion. 
 Amendments Nos. 238 to 240, 206, 241 and 272 are designed to explore the various elements of the conditions that the Bill imposes. I shall set out why subsection (4) has been drafted as it has, because a number of hon. Members drew attention to that. Trials may be exceedingly long without being particularly complex, even in respect of cases involving financial and commercial evidence. They may also be exceedingly complex without being particularly long, although it is fair to say that complexity tends to make a trial longer. The drafting of subsection (4) is concerned with the interplay of the two, because length or complexity, or a combination of both, can produce the problems set out at paragraphs (a) and (b). We need to provide for those cases, but we do not want to risk bringing in other cases inadvertently. 
 I must confess that I had some difficulty following the argument advanced by the hon. Member for Beaconsfield, that a health and safety case would be caught not only by the provisions of subsection (5). We must remember that subsection (5) is a condition that has to be fulfilled, as is subsection (4). I genuinely cannot see how the case that he gave as an example could apply. Nor was I persuaded by the argument advanced by the hon. Member for Woking about a burglary. As I said, we do not want to bring in other cases inadvertently. That is why the opening words of subsection (4) state quite straightforwardly that the complexity or the length, or both, must be the source of the problem. 
 There is no question of any implication that juries are not competent to hear cases. Long and complex financial cases are burdensome to everyone involved, but we are talking about cases in which jurors need to be relieved of that burden, because of the complexity and because all other means of alleviating it could diminish the overall justice of the case. Subsection (4)(a) needs to be read in conjunction with subsections (6) and (7). I shall come to my earlier point about the interplay between the two in a moment. 
 Subsection (4)(a) is intended to address the injustice that can be caused by severing trials, paring down evidence and reducing charges in the interests of making trials more manageable by juries, because justice, not least to the victims, requires the full criminality of these serious crimes to be addressed by the courts. That is not happening satisfactorily at present. 
 I remind those who tabled the amendments of the high threshold that applies before a judge can conduct these cases without a jury. Subsection (4)(a) is about cases in which it is necessary in the interests of justice for a case to be conducted without a jury, and it is a high test. 
 The hon. Member for Beaconsfield and others raised concerns about the extent to which clause 37 allows trial without a jury in cases other than those whose length or complexity derives from the sheer volume of purely financial evidence. The hon. Member for Hertsmere wants those cases to be limited to lengthy trials. 
 The key features that have caused such difficulties with juries in serious fraud cases falling within this narrow category can be a feature of other cases, too: for example, those that involve trafficking or money laundering or VAT-related frauds. The context for such offences is the sophisticated modern commercial and financial world. A common element is the use by defendants of a complicated network of companies, parties and overseas bank accounts to obtain property or launder currency. Their prosecution can necessitate the presentation of vast quantities of complex and technical evidence. In response to the hon. Member for Woking, in cases that fulfil the other requirements, property could include intellectual as well as physical property. As I said, efforts have been made over the years to try to deal with these problems, and the clause has been proposed because of the difficulties that remain, to which I have drawn attention. 
 On amendment No. 207, the court will be required to bear in mind all the efforts that can be made to make the case manageable for the jury. Subsection (6) requires the judge to consider everything that can reasonably be done to prepare a case for a jury trial before deciding whether, in spite of everyone's best endeavours, a jury trial would not serve the interests of justice or would place an excessive burden on the members of the jury hearing the case. In doing so, the judge will exercise his or her powers under the preparatory hearing regime.

Humfrey Malins: Will the Minister give way?

Hilary Benn: May I continue? It may help the hon. Gentleman.
 I can see the point behind the amendment: the hon. Gentleman wants to be sure that all the options that would allow a jury trial have been tested, but the subsection as drafted provides for that to happen. A judge cannot be satisfied that the conditions for ordering trial without jury under the clause have been met without having regard to the steps that might be taken to reduce the length and complexity of the 
 trial. However, I cannot agree that the order cannot be made until those steps have been taken, because it is just those steps that have the potential to impair the justice of the case. If the judge is satisfied that the steps can be taken to reduce the length or complexity of the trial to the point where the conditions for judge alone trial are not satisfied, the steps will be taken and the case can be tried by the jury. If the judge thinks, notwithstanding all the reasonable steps that will be taken, that conditions for a judge alone trial will inevitably be satisfied, there is no point in taking those steps to the detriment of the satisfactory conduct of the trial.

Humfrey Malins: Is the Minister saying that the problem is that he believes that a jury cannot understand complex and lengthy trials?

Hilary Benn: No, that is emphatically not what the Minister is saying, which is why I said so a moment ago. I draw the hon. Gentleman's attention to my remarks. It is about the burden that length and/or complexity creates. In the first instance because of the sheer length of time and the disruption that that imposes on juries—the excessive burden in the wording of subsection (4)(b) and in subsection (4)(a)—the Committee must consider the interplay between the duty of the process to allow the full criminality to be exposed and the damage that having to reduce that criminality to make it manageable for the jury does to the trial process.
 We now come to the point in subsection (7) about not disadvantaging the prosecution. I understand that amendment No. 208 is trying to ensure that the interests of the defence are not significantly disadvantaged. However, I would say to the hon. Member for Southwark, North and Bermondsey that the amendment is unnecessary because the judge is already required to ensure that the defendant's right to a fair trial is not compromised in any way. The defendant has many additional guarantees of fairness, not least under the European convention. Of course, the clause provides for rights of appeal against a court order to conduct or continue a trial without a jury, so there is no question of doing anything that would damage the defence.

Simon Hughes: If the Minister is so satisfied that the judge's obligation is to ensure that the trial is fair, the subsection is unnecessary.

Hilary Benn: Except that subsection (7) is about disadvantaging the prosecution in the sense that the steps would require the full criminality not to be put before the court. Thus, in order to make their case, the prosecution would want to lay everything out before the court for consideration. By slicing it up or leaving things out, it might be possible to make it more manageable, so as to satisfy the conditions that would allow for jury trial. However, in the process, the cause of the prosecution would be disadvantaged, because it would not be possible to expose the full extent of the criminality. That is why the subsection is there. That consideration does not apply to the defence.

Simon Hughes: I understand, but I have two points in rebuttal. First, the whole process is triggered only by the prosecution, and secondly, I think that the Minister said something earlier that was in error: it is my understanding that where there are agreed documents or ways of making a précis of the case, they are shown to both counsel and agreed by both sides before being used by the court, so any such methodology would have been agreed between the sides anyway.

Hilary Benn: On the second point, I hope that I did not say anything in error. I take the point about documents being available, but I am much persuaded by the views that were expressed in the Blue Arrow and Levitt trials, which I mentioned at the beginning of my contribution. They said that, in such cases, one is considering something that is unmanageable. That is why we are having this debate.
 As to the hon. Gentleman's other point, I accept that the prosecution apply to initiate the process, but the judge has to consider whether any steps can be taken to obviate the need to hear the trial without a jury. At that point, the prosecution have an interest in saying that such steps could be taken, but that if they were to be, the cause of the prosecution would be disadvantaged because things would be omitted that were important in exposing the full criminality.

Dominic Grieve: It seems to me that the hon. Member for Southwark, North and Bermondsey has a point. The defence come along and ask for trial by jury. The judge then says that the prosecution want trial by judge alone, but that he has considered the matter carefully and has come to the conclusion that it might be possible to have trial by jury if he tinkers with the way in which the indictment is to be tried. The defence counsel then thinks that there may well be a problem about having a fair trial. Surely, at that point, the defence must be included under subsection (7), because at the moment of coming to that decision, it might be that everyone agrees to go back to having trial by judge alone. The option must be included, otherwise it cannot be taken into account.

Hilary Benn: That is not the case, simply because the whole thing is appealable anyway, so if the defence are unhappy about the decision, they will have the opportunity to appeal it under clause 39.
 Amendment No. 254 is about whether there should be a reference to trial length. We considered whether that would be appropriate, but came to the conclusion that it would be inflexible and overly mechanistic. How long is long? We came to the view that such assessments are best left to the courts. That is why the clause is so drafted.

Simon Hughes: I shall deal quickly with the points. I shall not press my amendment to a vote, because I wish to vote on the clause as a whole. On the Minister's rebuttal of amendment No. 205, I accept that the number of jurors does not go to the heart of the issue. However, if there are eight jurors rather than 12, the matter is less burdensome in the round because it is burdensome on fewer people. I do not accept that having a smaller number of jurors makes them self-selecting. The evidence does not support that view.
 The evidence suggests that, when a group of people are empanelled, the cross-section can be just as reasonable, even though some are not comfortable with a long trial. One does not end up with more women or more men, or more older or more younger people, because society as a whole has a sufficient number of adaptable people in it, and it would appear to be able to meet the demands of the criminal justice system. For the reasons that the Minister gave, there are not many lengthy trials. Therefore, although in theory the outcomes are not statistically quite as random, I do not think that in practice the evidence bears that out.
 On the point about special advisers, the Minister was in error. Any document produced by anyone in such an advisory capacity could be cleared by both sides. That often happens. If documents are produced to help jurors, they are agreed all round. If a special adviser or some other person assisting the judge produced such a document, I would expect that to happen. 
 The Minister prayed in aid a couple of well-known cases that became unmanageable. Although I remember the cases—it was merciful that I did not have to follow them in detail—I am not sure whether that was caused by the inability of the criminal justice system to cope or by the prosecution's bad management. I recall that there was some criticism of the way in which the prosecution was managed in those cases. The evidence and the statistics show that the Serious Fraud Office is generally getting much better at managing such matters. About 10 or 15 years ago, the SFO's strike rate of successful convictions was about two in three. In the past five years, it has been more than eight in 10. The number of people working at the SFO has been beefed up. The procedures were reviewed and improved. There were criticisms of the fact that results were not being delivered. The old evidence is not very good evidence, and has been superseded by new evidence. 
 The fundamental arguments that remain are about amendment No. 208, which refers to subsection (7). The issue concerns whether the law ought to require that the judge not regard any of his assessments as of any disbenefit or benefit to either the prosecution or the defence. I am uncomfortable with, and disappointed by, the fact that the Minister could not find it within himself to accept that ''or the defence'' should be added to subsection (7). I have not seen his papers, but I have a sense that that bit of advice might come under the first category of things to be offered as a concession in times of difficulty. I know how such things work now. There is a first range of concessions, a second raft of concessions, and, as matters proceed to the House of Lords, a third raft of concessions. I have a sense that a bit more pressure of numbers further down the line would produce the change without too much difficulty. I hope that, even though the Minister, quite understandably, speaks to the brief on round 1, rounds 2 and 3 may persuade him and his colleagues that we should do something different. I shall reserve the other matters for later, and although I am not entirely comfortable with the proposals, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Humfrey Malins: This is a very important clause—one of the most important that we have considered. It is to be contrasted with clause 36, which was important in some ways. In effect, it said that there would be fewer jury trials, but at least it had the merit of giving the defendant the option of trial by judge alone. The real mischief in clause 37 is not that the defendant has that option; it is that the defendant has no option. The mischief is that the prosecution can opt for a trial without jury, no matter what the defendant may want. That is why it is very serious: it is the first clause in the Bill that can properly and purely be said to be attacking the principle of jury trial for a defendant.
 It has been a fundamental right for a very long time that a defendant should be able to be tried by a jury. That right is even more important in serious cases. In the most serious cases—and fraud cases are very grave—the defendant should have the right to be judged by a randomly selected jury of his or her peers, not by a single judge. Such offences carry great penalties, and society would feel more content if those charged with the more serious offences that this clause envisages were dealt with by a jury. 
 Has the Minister persuaded us today that there is a case for this clause to stand part of the Bill? I do not think that he has. It is not as if we had evidence that there is a crying need for long and complex cases to be tried not by a jury but by a judge alone. I ask him again, if he cannot answer me today, to write to me on a series of questions. It was entirely possible for those advising him to anticipate from the amendments what the questions would be and to have briefed him fully in advance so that he could make his case to the Committee. 
 I shall repeat my questions now. In how many cases have a jury been discharged in the past three or four years as a result of so-called complexity? In how many cases in the past few years have a jury been discharged because of the length of a case? In how many cases has it been impossible for a judge to empanel a jury to hear a case? What specific research have the Government done, never mind anybody else, with those who practise week after week—the SFO, the Bar or the judiciary—in serious fraud cases? 
 If the Minister could provide arguments today drawn from case after case that has gone wrong or been impossible to complete because of length or complexity, we would recognise that he at least has an argument. Those who think carefully about the matter will realise that this clause should not be allowed to remain in the Bill, because it gives the defendant the message that if the prosecution can persuade the court that a case is complex and lengthy, he will lose the right to trial by jury. No matter what the defendant's rights may have been in the past, it is over—that has gone. What powerful case is there for accepting that? 
 Who is against the Government on the issue? The Law Society and the General Council of the Bar are 
 against them. Undoubtedly, the Minister has already read the observations made to the Home Affairs Committee. He is keen to pray in aid that Committee when it supports him, which it does not always do, so I hope that when it does not support him, he will concede the point straight away. As a member of that Committee, my hon. Friend the Member for Witney (Mr. Cameron) may have something to say about this, having been there to hear all the evidence. 
 I suspect that the Select Committee received mixed signals on the subject, but as its report states, the case against the proposal is a case of principle: 
''Many claim that jury trial is the 'fairest' form of trial and therefore ought to be preserved for all cases and particularly for serious cases.''
 Peter Rook QC said that there is 
''no evidence that juries are not understanding the cases.''
 He was making the same point as that made by the hon. Member for Southwark, North and Bermondsey, that the Serious Fraud Office has achieved enormous advances, with a conviction rate now running at 86 per cent. 
 In his more detailed questions and answers, emphasising that it is worth preserving jury trial, Peter Rook QC said: 
''there is no evidence that juries do not do a good and dedicated job in relation to serious fraud. In fact it is somewhat ironic that we are sitting here today discussing this issue because the Serious Fraud Office have made enormous advances in the last ten years and, as you may know, the conviction rate for the last few years is running at 86 per cent. There is no evidence that juries are not understanding the cases, of course the normal issue in fraud is dishonesty.''
 He continued: 
''Of course there is some inconvenience to jurors in very long cases but, again, I would suggest that is a small price to pay. It seems as though juries accept that inconvenience and indeed carry out their duties with great dedication. It is our concern that we should not depart from this important principle of jury trial for all serious offences on grounds of expediency.''
 The case has not been made. Amendments have been tabled in an attempt to tighten up the clause, but the Government have rejected them. The matter of principle, however, remains, and plenty of Labour Members have a strong view about the preservation of jury trial and civil liberties. What sort of country are we in if, in relation to a serious, complex fraud case, the state—for it is the state—can say to the people of this country, who form the jury, ''We are not going to let you look at this, because it is too difficult for you and too long''? That is a shameful position and the reason why we should reject the clause.

Simon Hughes: I, too, hope that the Committee will reject the clause, which will produce a two-tier justice system, in which certain cases will be dealt with in one way and other cases in another way, but as the hon. Member for Woking said, in this case—and this is fundamentally different from what we were discussing on clause 36—at the instigation of the prosecution. From the point of view of the defendant and the public, that will be perceived as stacking the criminal justice system against the defendant. If the prosecution
 make their case, the public will not decide the outcome of the trial.
 Furthermore, this category is likely to consist of white-collar crime cases—let us be honest about that. The public should be able to judge white-collar crime in the same way that they judge other sorts of crime, and there is no reason why it should not be judged by the same cross-section of the British public. Indeed, it is important that it is seen to be judged in the same way, otherwise it might look as if there is a preferential bias in the system. Complex fraud cases very often involve professional people from the world of business and finance. If experts and lawyers handle such cases, and there are no lay people on the legal tribunal, it will look as if the professional classes are deciding the outcome. 
 The clause lends itself to the dangers alluded to by the hon. Member for Boston and Skegness and others. We could end up with a system in which justice is decided, but the public do not necessarily know how it was done, because the debate was confined to experts. The great benefit of the jury system is that it requires people to put matters clearly and to summarise their case. We might add that the clause increases the risk of the defendant not understanding the issue, which can be in no one's interests. 
 One can over-emphasise the burdens on the jury. In reality, jurors work for eight hours a day, and very often less. That is what most people do in their working lives. Although the job is different, people know that they may be called on to do it. It is part of civic responsibility that one takes the straw that one is given. It may be a short straw, and one may do two weeks and a couple of quick trials, or it may be a long straw. However, we are talking about giving up at most six or nine months out of a whole lifetime to do one's civic duty. Jury service is one of the responsibilities of citizenship. It is not only ''fair and reasonable'' and not too big a price to pay, but beneficial to those who do it, just as being on the lay Bench is. Participating in the democratic process is generally an ennobling and improving experience. Although it may be hard to concentrate during a long trial, I have no strong recollection of people protesting that they were less willing to take part in one or that it was less important to do so—people understand their job. 
 I endorse the point made by the hon. Member for Woking, that the evidence base for the proposals is weak at best, and possibly non-existent. The Minister prayed in aid two cases, but I think that we accept that they come from a previous generation of case management. There will always be one or two cases that are difficult to manage, but there was no great demand for the proposed changes among jurors, members of the public, the press, groups representing judges and the legal profession or anyone else—there was no great pressure for them. The Minister is right to say that the issue has been examined periodically over the years and that it has been around—of course it has—but the case is weaker now than when the Roskill and other inquiries considered it. 
 The hon. Member for North Down (Lady Hermon) is probably best placed to understand my next point. If 
 one is looking to instil confidence in the criminal justice system, one should surely look for more lay participation, not less. It would be unhealthy if the treatment of white-collar crime and financial fraud were subject to most criticism. In constituencies such as mine, where the majority are on low incomes and only a small minority on high incomes, we need people to know that those living in the posh flats receive the same justice system as ordinary people, not a system that differentiates and gives those on 10, 20, 30 times the salary a better chance of getting off. 
 In the famous first royal butler trial, the question arose whether an application for a public interest immunity certificate had been made. The judge had to decide whether certain evidence should be allowed because it had a prejudicial value. In a civil trial, judges often rule on procedural matters and then move on to matters of fact. The great benefit of the system in criminal trials is that when a case goes into session without the jury while legal argument continues, the judge decides on the legal matters and can be appealed to about them, but the jury decides on the facts. 
 When judges rule that evidence is inadmissible, people find it difficult to believe—it is one of the great fictions that judges and magistrates go through—that it can be put out of their minds altogether when it comes to adjudicating on the facts. Juries sometimes know that arguments about the evidence were conducted in their absence, but only what is entitled to go before the jury does go before it. On matters with as much national significance as a murder trial, we must be careful not to provide another reason for people to feel that unfairness is built into the criminal justice system. 
 The arguments in favour of changing the jury system are almost non-existent and outdated, and the arguments against are overwhelming. The public have significant confidence in the jury system—more than in Parliament, local government or, sadly, the police—so we tamper with it at our peril. Changing to a two-tier justice system at the instigation of the prosecution risks undermining the wide public confidence in this aspect of the criminal justice system.

Mark Simmonds: I, too, want to speak against the clause. I oppose it for some of the same reasons and for some additional reasons to those already outlined. Fraud is a serious offence that carries extremely heavy penalties, and the jury system provides the fairest way of reaching a correct decision.
 My hon. Friend the Member for Woking spoke about a fundamental lack of research by professionals from both within and without the criminal justice system. The Minister referred to previous cases as precedents, as well as to the Auld report, which set out the arguments for and against jury trials, taking a balanced view without coming down on one side or the other. 
 I shall paraphrase the various arguments set out in the Auld report in favour of jury trials. First, they are a hallowed democratic institution, enshrining citizens' rights in all cases, including serious and complex 
 frauds. Secondly, the random nature and selection of juries ensures their fairness and independence. Thirdly, in cases of serious and complex fraud, the question is mostly one of dishonesty: the jury have to decide in the context of the complexity of the alleged financial impropriety whether the individual on trial has been dishonest. I see no evidence that juries are failing in their duty to come up with correct solutions. Fourthly, there is no evidence that juries cannot cope with long and complex cases or that their decisions are contrary to the evidence. 
 Fifthly—a point made by the hon. Member for Southwark, North and Bermondsey—there is openness and public intelligibility if the parties have to accommodate the jury's newness to the subject matter by presenting their cases in simple and easily digestible form. That is a fundamental point, which I made in the debate on clause 36. 
 There is no evidence that juries have reached incorrect decisions in serious or complex fraud cases. The statistics from the Serious Fraud Office for 1990–2001 have been mentioned before: 86 per cent. of the cases brought by the SFO have resulted in convictions. There does not seem to be a problem in the criminal justice system when serious fraud cases are being discussed. 
 I should like to add to my earlier comments about judges. What will happen if the prosecution opt for a judge only trial? Will there be a register of judges' interests. The judge may have been an ex-shareholder of Guinness, or his wife or family may have been. Will there be registers of shareholdings and financial interests of all those who may be called to preside over such cases? I suspect that judges would not wish that to be the case or for it to come out in the open. 
 I am sorry that the hon. Member for Nottingham, North (Mr. Allen) is not here. I agree with some of what he says. It is essential to create confidence in a criminal justice system by simplifying the legal process and the language that is used. That will certainly not be the case where we have two lawyers and a judge who are experts in their particular financial field. We will get into acronyms, jargon and language that the defendant may not understand, never mind the reporters and the members of the public who should be taking an interest in such serious cases. There is a danger of lawyers talking only in their own language and making the system even more incomprehensible. 
 Like my hon. Friend the Member for Woking, I am concerned that only the prosecution in this instance have the ability to opt for a judge only trial and not the defendant. That is where the fundamental difference between clauses 36 and 37 arises.

Hilary Benn: If the defendant wishes to opt, he can do so.

Mark Simmonds: I thank the Minister for clarifying that.
 It seems strange potentially to expunge the right to jury trial in these cases, purely on the basis of the inconvenience and the time it may take up for jurors. There seems to be no evidence that juries cannot be put together for complex fraud cases that may take six 
 months or longer. There also seems no evidence that juries are reaching incorrect decisions or not understanding the complex issues before them. The Minister needs to explain in far greater detail why the clause needs to be a fundamental part of the Bill. While I have listened to him with great interest, and I thought he performed extremely well on previous clauses, he has not made a convincing case today.

David Cameron: Like my hon. Friend, I oppose the Government's moves to limit jury trials in complex cases. I should probably start by declaring a sort of interest. My brother is a criminal barrister who specialises in complex fraud cases. He was on the defence team in the Blue Arrow and Guinness cases. I am ashamed to say that he has even defended one or two former parliamentary colleagues who got themselves into trouble. Having said that, however, he also defended one of the Maxwells, so I can say that he does bat for both sides. If members of the Committee ever get into trouble on that front, I can thoroughly recommend him. If the hon. and learned Member for Redcar is not available, I can tell them where to find him.
 The issue was discussed by the Home Affairs Committee. I see that the hon. Member for Bradford, West (Mr. Singh) is here. That Committee tries really hard to reach consensus, and we normally discuss things for a long time. On this issue, however, we could not find agreement. I obviously think that the amendment that we were debating was good, because I tabled it, but I want to share with the Committee what it would do, because it sums up the problems with the clause. The amendment stated: 
''We do not accept that a convincing case has been made for removing the right of trial by jury from defendants in complex fraud or financial cases. The requirements of justice should come first; practicalities are important, but secondary issues. In complex cases it must be for the defence, prosecution and judge to crystallise and clarify the issues for the jury. Judge only trials would become complex and technical; justice would not be seen to be done and defendants could be convicted at the end of proceedings that neither they nor the public had fully understood. A clear statement from this Committee that the right to trial by jury should be retained may encourage Governments to cease attempts to undermine the jury system.''
 I am sorry that that amendment was not accepted and that the Government did not miraculously stop their assault on the jury system, which it would have saved everyone a lot of time. 
 I would like to reinforce a couple of points that have already been made. I understand that even the most complex cases normally boil down to a few simple points—for instance, whether the company concerned bought its own shares to support its share price, or whether someone had inside information when dealing in shares. The answer is normally yes or no; it is usually an important crunch point, on which the jury have to decide who is telling the truth. The argument that such cases are too complex for juries to understand is wrong. 
 I think also that the point about justice being seen to be done and being understood is terribly important. I am neither a lawyer nor a member of the Labour 
 party, so I feel no shame in quoting the Society of Labour Lawyers, which told the Home Affairs Committee: 
''Comprehension is also a particular concern. If fraud were allowed to become the preserve of lawyers alone the language and process of such trials would swiftly become incomprehensible to the rest of society.''
 That was put extremely well. 
 Next is the matter of conviction rates, as cited by the hon. Member for Southwark, North and Bermondsey and others. Peter Rook, chairman of the Criminal Bar Association, spoke about the fact that the Serious Fraud Office had had a bad beginning, but that its conviction rate was now 86 per cent. Why, then, are the Government so desperate to have another go at the jury system? 
 I come to the thin end of the wedge argument. I have never accused the Minister of using it; he is too gentle and nice to introduce any sort of wedge, let alone the thin end of one. I was not a Member when the two previous attempts were made to limit jury trial. We are now dealing with attempt No. 3. On those previous occasions, completely different arguments were advanced about the cost of the jury system, and about delays in the criminal justice system and the fact that everything took too long. 
 The Government lost those arguments. Suddenly, we now face a completely different set of arguments. We are being asked to have another go at the jury system with arguments that were not advanced on those previous occasions. I know that one is meant to concentrate on the song rather than the singer. However, on this occasion it seems that we are having to concentrate on the whole band—but certainly not the Minister, who is eminently reasonable—and what the Home Office has been trying to get us to do on that front. It is worth examining the motives. 
 My hon. Friend the Member for Woking put it brilliantly by saying that before accepting the clause we would want the strongest possible evidence in favour of the Government's case that juries find it difficult to sit for that long and, as a result, that the pool of jurors has become reduced. However, we have heard nothing about the number of trials that have come to an end because jurors were discharged. We have not heard that evidence, and we cannot possibly accept the clause until we have that number and can see whether it has been getting worse or better. We need much more evidence for that. 
 The Minister seemed to be making two points. One was about the effect on jurors reducing the available pool, but we have not seen any evidence for that. The other was about the full criminality not coming out in court, but we are getting an 86 per cent. conviction rate, so full criminality seems to be coming out in most cases. He mentioned two cases. I have not had time to rush off and look them up in the Library or consult lawyers, but from memory, the defendant in the Levitt case was found guilty. One problem was that the sentence that he received was so woefully inadequate that he ended up making toys in a central 
 London probation workshop where, if he went now, he would probably be joined by a lot of burglars. The sentence was the problem. I cannot remember all the details of Blue Arrow, but I seem to remember that it was in the early days of the Serious Fraud Office, which did not get its ducks in a row or present its case properly. We need more detail on what went wrong in those cases.

Simon Hughes: The case about full criminality not being presented, which I did not pick up, is undermined by the fact that in many straightforward criminal trials of two or three charges, there have really been 12 matters, which come out only after the trial and before the sentence. We do not need every example of the fraud. If the prosecution has several good cases, it is good enough for a jury. That happens now, day after day, in both complex and non-complex cases.

David Cameron: Absolutely, and that brings us to the point about complexity. In complex cases, the prosecution have to consider how to boil down the case to explain to the jury in simple terms what the defendant has done wrong, and the defence have to do the same for the opposing case.
 I will end on a point of principle. I was concerned that we did not hear a lot about the principle, but my hon. Friend the Member for Woking put it well. I have sat on a jury—many of my colleagues who are barristers will not have had that opportunity—and it is one of the most exciting and interesting things that a member of the public can do. It was just across the road in Marylebone county court. The standard of debate in the jury room, the effort that people put in to try to get it right, and the seriousness with which they took their responsibilities, whether they were old, young, black, white, rich or poor, were impressive. The right to trial by jury is fundamental, particularly for offences that carry long custodial sentences. We are talking about complex and long cases, in which the defendant could go down for a long time. Before we remove the right to trial by jury in those cases, we must hear considerably better arguments than we have heard today.

Dominic Grieve: As I spoke at great length on the details of the various amendments, I do not want to take up too much of the Committee's time. I stayed away from debating principles, because I wanted us to look in detail at the clause. As I said, I felt that it contained many inherent flaws and contradictions, and I still believe that. However, there is an issue of principle, which was eloquently presented by my hon. Friends the Members for Witney and for Boston and Skegness. It is one that I cannot get round.
 I have not heard one justification for the clause. We have examined the various clauses and will continue to do so, and various different arguments have been advanced. In the first matter that we examined, it was a case of a defendant's choice, and on jury tampering, there was the argument that if we do not make changes, it might mean that we cannot have a trial. However, on this point, there is no credible justification based on objective evidence that the move is necessary other than for the convenience of 
 prosecuting authorities. There is no other rational justification for it. 
 My professional experience is that provided that a jury has been properly warned of the likely length of the trial at the time of empanelling, that some unexpected circumstance does not cause the trial to drag on well past the expected end date, and that the case management has been properly done, there is no difficulty in finding a jury of respectable, common-sense people drawn from a broad cross-section of the community who are able and willing to sit through a case. 
 Indeed, in lengthy cases in which I have been involved, it has been obvious that the jury has got into the trial. The jurors are enjoying the detail of the case and tend to cohere together in a way that one does not often find in a short trial. It is perfectly obvious that if one looks at the jury box, they are taking a credible interest. Should one or two jurors not take an interest, the jury system deals with that problem through the sheer number of those present on the jury. Prejudices or inattention can be ironed out by the number of jurors who take the decision. 
 There is no rational justification for the clause. It is a massive attack on the principle of jury trial. The defendant does not request a judge only trial; the application is entirely at the behest of the prosecution. While I was out, the Minister said that he could not see how the clause would apply to health and safety trials. However, I am still not persuaded that the way in which the clause has been worded is not such as to allow for quite surprising examples of trials to fall into that category. 
 In the Port Ramsgate walkway collapse trial, at which I was the junior prosecuting counsel, I assure the Minister that the trial concerned property—the walkway, the quay and the installations. I assure him too that the trial concerned the financial and commercial arrangements, transactions and records pertaining to the way in which that walkway was installed. That was what the whole trial was about. The wording of subsection (5)(a) goes far beyond a fraud trial. I cannot accept that it can be so confined. In those circumstances, what we are doing is unreasonable and unnecessary, and I hope that the Committee will reject the clause.

Mark Francois: I have only two brief points to make. First, I apologise for my absence from today's earlier deliberations. I was attending a funeral in my constituency of a special and unique man called Brian Weedon, who will be greatly missed. However, I am pleased that I have been able to return to Westminster in sufficient time to be able to vote against this particularly pernicious clause.
 Secondly, we were joined in the Public Gallery for part of our deliberations by the hon. Member for Streatham (Keith Hill), the Labour party's Deputy Chief Whip.

James Cran: Order.
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 10, Noes 7.

Question accordingly agreed to. 
 Sitting suspended. 
 On resuming—

Clause 38 - Application by prosecution for trial to be

Humfrey Malins: I beg to move amendment No. 256, in
clause 38, page 25, line 12, leave out 'satisfied' and insert 'sure.'.

James Cran: With this it will be convenient to discuss the following amendments:
 No. 209, in 
clause 38, page 25, line 14, leave out 'either or both of' and insert 'both'.
 No. 210, in 
clause 38, page 25, line 16, leave out 'must' and insert 'may'.
 No. 247, in 
clause 38, page 25, line 18, leave out 'real and present danger' and insert 
 'there is evidence to satisfy the judge on the balance of probabilities'.
 No. 211, in 
clause 38, page 25, line 18, leave out 'danger' and insert 'evidence'.
 No. 212, in 
clause 38, page 25, line 18, after second 'that', insert 'serious'.
 No. 248, in 
clause 38, page 25, line 25, leave out subsection (6).
 No. 213, in 
clause 38, page 25, line 27, leave out from 'the' to end of line 29 and insert 
 'judge is satisfied that there is sufficient evidence indicating that jury tampering will take place.'.
 No. 214, in 
clause 38, page 25, line 29, at end insert— 
 '(7) Such an order may not be made unless— 
 (a) all steps which might reasonably be taken to prevent jury tampering have been taken, 
 (b) the judge is satisfied that after such steps have been taken conditions (1), (2) and (3) above continue to be met, 
 (c) the judge is satisfied that such an order will not compromise the defendant's right to a fair trial.'.

Humfrey Malins: The amendment relates to clause 38, which considers the important and increasing problem of jury tampering.
 There are two sides to the argument. One says that we should protect jury trial whatever the cost, and the other that we should do all that we can to prevent jury tampering, and thereby save a lot of money. 
 It is as well to understand the sophisticated techniques and the determination of those who would tamper with our juries. We should also understand that it costs a lot of money to protect a jury, and that there is a lot more jury tampering than there used to be. 
 I shall give the Committee an example, which concerns a big drugs case in Liverpool. I believe that these issues particularly affect the inner-city areas, the big metropolises such as Liverpool, Manchester and Birmingham, where the drug culture is strong, and gang warfare prevalent. The drugs case took place not many months ago in Liverpool and lasted for six weeks. On the first day of the judge's summing up, one juror was followed home and offered money to produce a verdict sympathetic to the defendant. He told the judge about it the following day, and the judge said that he would discharge him and that the trial would continue. The next day, two more jurors were followed home, badly threatened, and came in trembling the following day. The jury had to be discharged and a new trial had to start. How much would that trial have cost over six weeks? A parliamentary answer that I received on 10 July 1997 said that the Crown court cost us £7,800 a day: I believe that that has now increased to £9,000. Six weeks of that amount per day equates to £270,000. 
 Other protection measures have an increasing cost. In the retrial of that drugs case the jury had to be bussed into court; they were picked up in special vehicles from their homes. In a most unusual circumstance, they also were not identified by name. The clerk gave a card numbered 1 to 50 to each of the jury panel and kept another parallel set of cards. When they were being empanelled, the clerk, having shuffled her own pack of cards, called out No. 3, No. 17 or No. 16, for example, rather than calling out John Smith or Fred Brown. That sort of procedure is becoming increasingly prevalent. 
 In the same court, people smuggle in mobile phones, take photographs of the jurors and send text messages containing the photographs to contacts outside, so that the jurors can be followed home. In the same court and elsewhere, people send text messages from mobile phones smuggled into court about what the witnesses say and what the jurors look like. In another court or the same court a prosecuting barrister was beaten up and could not carry on. That is the background, and it illustrates the problems that we face. 
 The other side of the coin is to say that, whatever happens, never mind the expense or the worry, we must try to proceed with a jury. That is why the amendment would tighten up subsection (3) so that, rather than saying that when an application is made under subsection (2), the judge must be satisfied that 
 conditions are fulfilled, it says that the judge should be sure. That is a higher standard. One can be satisfied, on the balance of probabilities, but the standard of being sure is higher. 
 Other amendments will be spoken to by the hon. Member for Southwark, North and Bermondsey, and there will be further debate on stand part, but I am trying, despite the worrying picture of jury tampering that I outlined a few moments ago, to ensure that the court will proceed with great caution before saying that a case is to be conducted by judge alone. It seems more sensible for a judge to be ''sure'' that conditions are being fulfilled than to be ''satisfied''. The judge can be sure only on the basis of oral evidence heard privately, perhaps—almost certainly—in the presence of counsel for both sides, perhaps in chambers, perhaps in court, but almost certainly in the absence of the press or members of the public. The judge would have to be satisfied on the basis of evidence put before him. By definition, that would be anecdotal, rather as with an application for a search warrant. 
 A magistrate or district judge granting a warrant has to be content that the information laid before him is true, rather than conducting a deep inquiry into it. He has to take the word of the officer that there is a drugs offence going on at a certain address. Similarly, in the Crown court, the judge will have to hear all evidence. The amendment seeks to protect the position more strongly than the clause does now, by saying that before moving to make such an order, the judge should be sure.

Stephen Hesford: This is a short and serious point. If a judge came to the conclusion, on the balance of probabilities, that a case was at serious risk of jury tampering, is the hon. Gentleman saying that it would not be sufficient for him to say, in all conscience, that there was a risk that the case would go pear-shaped? Surely, that would be enough?

Humfrey Malins: I understand the hon. Gentleman's point, but I would ask him to remember that we are dealing with a situation in which no jury tampering has yet taken place. It is not as though, as in a later clause, jury tampering has occurred. We are considering the beginning of a trial, when somebody is saying to the judge that it is feared that jury tampering will take place. In general, we should fight against the proposition that juries should be replaced by judges.
 I can understand the argument that a jury should be replaced by a judge in a case in which jury tampering has taken place. However, if it is argued that a jury should be replaced ay a judge in a case in which it has not taken place, but it is anticipated as somewhere between a possibility and a probability, my point would be that, given the importance of trying to maintain the jury system, and not to buckle under in response to outright threats, the judge should have a high standard of thinking on the issue before making the appropriate order. If the judge thinks that it is possible that there will be jury tampering, that is not necessarily a satisfactory position. If he thinks that it is likely or probable, is that satisfactory? If the judge is 
 sure, that means that he has reached a conclusion based on evidence that makes him sure, which is no other standard than the jury themselves must observe in the event of their coming to a guilty verdict. 
 The purpose of the amendment is to tease out from the Government what would be the problem with inserting ''sure'' on the basis that it might cause more jury trials to go ahead, perhaps safely, than might otherwise be the case if the judge were simply to grant a judge only trial if he believed that a case might involve jury tampering. The hon. Gentleman follows my argument, and I hope that he will explore the matter with me.

Simon Hughes: I want to speak to amendments Nos. 209 to 214. Clauses 38 and 39 deal with the procedure and clause 40 with the consequences of the proposal, which is that, if the criteria concerning jury tampering are met, an application can be made to the court either to continue the trial without a jury or to end the trial and start a new one without a jury. At present, the judge can discharge the jurors or, in the worst-case scenario, he can discharge the jury and there will be a retrial. That allows the trial to continue or a retrial to happen but without the jury present. The amendment explores the criteria and the triggers for that situation; it would amend them to strengthen the threshold and make it a higher hurdle to jump.
 I am aware that this is a real live issue from general knowledge and from having lived through many cases personally or having read the reports in my local papers. If people think that their liberty is so important and their drugs and guns activity is so profitable, some of them will resort to almost anything to interfere with the course of justice. The most severe view must be taken of interfering with the criminal justice system, and it is important that people understand that the consequences of being found guilty of doing so are that they will be sent away and locked up. Society must take a clear view about that. 
 I do not know whether members of the Committee saw a drama-documentary series on ITV about six months ago called ''The Jury'', which was shown on a Sunday night. I commend it to the Minister if he has not seen it. I usually have something better to do on a Sunday night than watch television, but I saw the first programme in the series of three and I was sufficiently taken with it to watch the others. It portrayed a series of issues for the jury in an interesting case, including the intimidation of jurors, and gave an up-to-date, practical demonstration of how pressure can be applied in all sorts of ways. 
 Amendment No. 209 would ensure that all three conditions set out in the clause are met, not just two. The first condition, in subsection (4), is that 
''there is a real and present danger that jury tampering would take place.''
 The second condition, in subsection (5), is that 
''(a) the danger is such that it would be necessary to provide police protection for the members of the jury hearing the trial, and
 (b) the level and duration would be likely to place an excessive burden upon the life of a typical juror.''
 Subsection (6) states: 
''The third condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken . . . the likelihood that it would take place would be sufficiently high to make it necessary in the interests of justice for the trial to be conducted without a jury.''
 If the prosecution apply for a non-jury trial—it is the prosecution who would apply—the Government propose that the judge must be satisfied that the first condition is always met and that either one or both of the second and third conditions are met. Amendment No. 209 seeks simply to ensure that all the conditions are met. Three tests must therefore be passed, which obviously raises the threshold. 
 Amendment No. 210 is a straightforward amendment that has been tried elsewhere. It would give the judge a discretion, not an obligation, to consider the matter and form his or her own view. Currently, the judge is obliged to make an order. It is very difficult to anticipate circumstances when defining provisions, and it is therefore difficult to give the judge a discretion in the round—an issue that we have already debated. It is better and more appropriate to form a view, which judges would welcome. 
 I hope that amendment No. 211 will appeal to the Government. As I said, the first condition, as currently defined, is 
''that there is real and present danger that jury tampering would take place.''
 However, it is difficult to define danger. The amendment proposes that there must be evidence, rather than danger. I must say to the Committee in all honesty that there is a real and present danger of jury tampering in every armed robbery trial in inner London sessions, Southwark Crown court or the Bailey that relates to my borough. That danger is greater the greater the sum and the better known the defendants. However, that is not sufficient. There must be evidence. There may be all the difference in the world between the gangs of yesteryear—the Richardsons, Krays and Frasers, whom one would expect to stop at nothing—and the relatively amateur, or ''starter'' gangs committing their first armed robbery, who might not have deployed this tactic. 
 I hope that colleagues on both sides will be persuaded that we must do better than saying merely that there is a danger. Otherwise, we cross the first threshold readily and often, which I do not believe was intended. At least, I hope that it was not intended. There should be concrete evidence. 
 Amendment No. 212 might not be syntactically wonderful, but it is a probing amendment that enables us to ask what constitutes jury tampering. Will the Minister say what he believes jury tampering to be? The amendment triggers the suggestion that the jury tampering is serious. Small things can happen, such as incidents of jostling and verbal abuse if jurors pass the same way as the defendants and their families on the way to court, but I am sure that we would generally agree that that is not jury tampering. We need to know what constitutes jury tampering. There is all the difference in the world between standing outside a juror's home at the end of the day and saying, ''If you 
 vote for the defendant to be guilty, you won't be in this house any more'', threatening their family, friends and property, and things that are incidental but unpleasant. If, as is quite common, someone's car tyres are let down, their car is scratched or abuse is shouted at them, that is a marginal case. Those things are unacceptable and happen too often, but whether they should trigger the response that we are discussing is debatable. 
 Amendment No. 213 is in the same vein. It would redraft what appears to be a rather loosely drafted third condition—I mean no disrespect to the draftsperson responsible. In the current phraseology, the third condition is that ''the likelihood that'' jury tampering 
''would take place would be sufficiently high to make it necessary in the interests of justice for the trial to be conducted without a jury.''
 The proposed alternative would bring in the point that there should be evidence, and provide tighter, better wording. The judge would have to be 
''satisfied that there is sufficient evidence indicating that jury tampering will take place.''
 That wording is very clear, and I hope that it might commend itself on the basis that the parliamentary draftspeople, although clearly experts in their craft, would be willing to advise Ministers that there might be better formulations, as well as on the basis of the substantive point. 
 Amendment No. 214 brings us back to a debate that we had before. It would add a final condition in a new subsection (7). The amendment states that an order may not be made unless all steps that might reasonably be taken to prevent jury tampering have been taken, and the judge is satisfied that after such steps have been taken conditions continue to be met, and that there will not be prejudice to a fair trial. 
 These are not dogmatic or theological suggestions; they are simply designed to ensure that the process is clear. It should be about what we can do without changing the jury trial principle. Normally, that means juror protection, and sometimes other things. If we have taken those reasonable steps, let us have reasonable thresholds. 
 The final issue is whether there will still be a fair trial. We shall come to this under clause stand part, but there are alternatives that fall short of aborting a jury trial. One is to give particular protection to jurors. That is often tried, and we know from evidence to the Home Affairs Committee about the cost to police of providing that security. The second, twofold option is to take steps in court to make jury tampering much more difficult, although that does not deal with the point made by the hon. Member for Woking that once jurors have been identified by name, it is easier to track them down. In addition, for a court sitting in Hereford, for example, there would be a smaller pool of people and they would know one another more than would be the case in Snaresbrook. 
 However, there are other possibilities, which I have raised with the Minister's colleagues. One could ensure that the trial did not take place such that the jurors 
 were in sight of the public gallery. One of the most common ways in which someone can intimidate or try to nobble a juror and to interfere in the process is simply by eyeballing them and then standing as they leave the court in order to be seen. In that way, wherever the juror goes, someone seems to be following them. The situation might be worse, in that the person might follow the juror home, but the juror is still perpetually being watched in court, and that happens commonly. 
 The most extreme possibility is to have a court without the public in it. That would be unusual, but I believe that there is a strong argument for saying in an exceptional case that it will carry on in camera. There is a precedent for that in security cases and special tribunals. It is not ideal, but it must be more ideal than getting rid of the jury. If one can catch, prosecute and convict people who try jury tampering, one gets a result.

Stephen Hesford: If the hon. Gentleman was a juror who fully realised that the judge had taken the extraordinary step of clearing the courtroom and ordering that the trial proceed in camera because someone was trying to get at the jurors, would not he then be more likely to feel under pressure?

Simon Hughes: I understand the point. I have never served on a jury, though I have often sat in courts in support of people, families or witnesses, and not as a lawyer. I think that the fear is much less in those circumstances than it is when one thinks that there are people monitoring one's every movement. Although one's movements may still be being monitored outside the court, one feels more protected if, while one is doing one's business on the jury, one does not have four, six or eight pairs of eyes peering down on one.
 If jurors are in an armed robbery trial, a serious drugs import case, or a multi-million pound fraud case, they know that they will be under big pressure and that they can ask for juror protection. Many people go through that. Many take and understand the pressure, and the court will help them to deal with it appropriately.

Dominic Grieve: Such an absolutist position is not necessary. I think that the judge, in his discretion, can ensure that the public are not admitted, but can allow accredited journalists to attend, so that the matter is still reported. I think that that is quite within the judge's powers, and if it is not, we should consider that.

Simon Hughes: Indeed. I did not intend to suggest that we should automatically go the whole hog. There are also cases in which reporting restrictions are not lifted, so the matter can be managed in other ways. There is a whole tariff or sequence of options. With the amendments, I intend to ensure that there is a much clearer set of hurdles, irrespective of the view that the Committee takes about the proposals as a whole.
 There is a danger that, if we legislate without having tried alternatives first or made things more difficult, we are giving in. There is an argument that, if one legislates to allow non-jury trials in such circumstances—at a threshold that I judge to be relatively low—one is giving in to the intimidation far 
 too easily. That cannot be right. If people realise that they can regularly force non-jury trials, it will look as though the thugs are winning and the criminal justice system is not. Again, I bow to the recent experience in Northern Ireland in that respect.

Paul Stinchcombe: I wonder whether the hon. Gentleman is right that we are giving in too easily. If those lesser options met the concern of jury tampering, so that it was not necessary to provide an unreasonable level of police protection, the jury would not have to be discharged.

Simon Hughes: Of course the clause details a set of preconditions. I appreciate that, and have argued that the preconditions ought to be higher. I do not say that there is a series of steps that prevent us from going down that route automatically. However, some of the steps are pretty loosely drawn. The hon. Member for Woking criticised the fact that everything is predicated on possibility, not on actuality. That is the weakness. There is a high possibility that such trials in south London will have jury tampering. If one goes only on where there is or has been evidence, one reduces that number considerably.

Stephen Hesford: Does the hon. Gentleman accept that the Northern Ireland example goes entirely against his argument? Far from letting the criminals and others win, in Northern Ireland, there was a point at which they were told, ''You cannot win. There will be a trial. Somebody will have a court hearing. People will go on trial, there will be a verdict, and people will go to prison.'' In Northern Ireland, it sent a message to the community that people will not beat the system to a standstill. It did the reverse. We can recapture the ground. Even if criminals in those circumstances try to tamper with the jury, the system will still beat them because there is the option of a non-jury trial.

James Cran: Order. That is far too long an intervention.

Simon Hughes: The hon. Member for North Down may want to intervene, but it seems to me that the change in the law in Northern Ireland was in exceptional circumstances. Draconian emergency powers were passed across the board, contrary to all our natural traditions. They were time-limited and had to come back to Parliament to be re-enacted. We absolutely did not legislate, and never have in Northern Ireland, for indefinite non-jury trial. We had anxious debates on renewal orders to extend what was only ever intended to be temporary legislation.
 This is not temporary legislation. Non-jury trials were introduced in Northern Ireland because there was a civil emergency there; there is no civil emergency, thank God, in England, Wales or Scotland. There is now a far less serious civil emergency in Northern Ireland. Indeed, Northern Ireland legislation has changed to remove many of those emergency powers, and the anti-terrorism provisions that currently operate in Great Britain are for exceptional limited powers for limited periods. They are subject to renewal orders that my colleagues and I forced the Government to accept in the last Parliament.

Lady Hermon: I apologise to the Committee for my absence in the early part of the
 afternoon; it was a rare occasion when the Ulster Unionist party was in on Opposition day, and an even rarer occasion when we talked about education rather than decommissioning.
 Unfortunately, the consequence of the Diplock courts in Northern Ireland was to undermine the confidence of a large section of the community in the independence of the judiciary. Reform of that system was specifically written into the Belfast agreement to rebuild the confidence of the nationalist, Catholic community in the justice system. It was a very serious problem in Northern Ireland.

Simon Hughes: I defer, inevitably and happily, to the hon. Lady, who has a lifetime's experience in the matter. I hope that the hon. Member for Wirral, West will talk to her about it. I have been in Northern Ireland often and have spoken to the Human Rights Commission and to others there who argue that going down that road undermines confidence. Of course a judge can be more easily protected than juries, but that makes judges even more remote. It makes them even more likely to be targets. It removes any sense of democratic process. We must be careful. Regularly holding non-jury trials in south London or Liverpool or Birmingham or Manchester would send out the message that we were unwisely eating away at the principle of jury trial.
 I hope that some or all of the amendments will commend themselves to the Minister.

Dominic Grieve: As my hon. Friend the Member for Woking made clear, this clause raises serious issues. The rule of law must be maintained. However, if the rule of law cannot be maintained because it is not possible to get a verdict from the jury because they have been intimidated, an alternative means of trying somebody has—has—to be used.
 That is exactly what happened in Northern Ireland. The hon. Member for North Down will correct me if I am wrong, but the problem was not only one of intimidation; in respect of offences linked to sectarian violence, it was unfortunately impossible in certain areas to obtain juries who were not too influenced by the climate of sectarianism to return a true verdict, whether or not they had been intimated. The problem went beyond that of jury tampering; it was difficult in certain circumstances to find juries who would be fair and impartial, which is a slightly graver problem than the one that we have here. 
 My first concern is to put the problem in proportion. I would be interested if the Minister were to help us by telling us the extent to which jury trials in England and Wales are being abandoned because of jury tampering. In addition, we need information on the extent to which tampering occurs in retrials, despite the necessary protections against tampering that are in place, because it makes the retrials impossible. 
 Clauses 38 and 40 are intimately linked, and we shall have to consider both because they raise different 
 issues. However, clause 40 may be justified and clause 38 may not—or they may both be necessary. I have had experience of jury tampering—it certainly used to happen during my early days at the Bar. At its most banal, it takes the form of the juror being approach outside the court by someone who, out of the blue, says about the defendant, ''He's a good lad, you know.'' That was a piece of jury tampering, the jury were discharged and the case started again. That is one end of the scale. At the other end are attacks on jurors' property or vehicles, or threats to kill them. Again, we need to hear from the Minister and the Home Office about the extent of tampering, and whether it is at one end of that scale or the other. Upon that will depend the sort of measures taken to address the problem. 
 There has been some discussion, which we need to continue, about what is needed. Since my early days at the Bar, when accosting took place outside the court, with the phrase, ''He's a good lad, you know,'' and sometimes the offer of a tenner, a lot has changed. For instance, the way in which juries are empanelled has changed, as has where they sit in court, how they leave court, and the entrances and exits that they use. 
 If the court authorities wish to have an anonymous jury, their entry into court must be organised in such a way that no one can see them come in or go out, and no one will know where they come from. They will be bussed in from another area that, in a large city, is likely to be sufficiently large for them to get lost, and they will be so seated in court that they are not visible to the public gallery—or if necessary, the public gallery can be cleared. It is possible to have a jury that, to all intents and purposes, is almost incapable of being tampered with. If tampering is taking place, I would be interested to know how it is being achieved. Again, we need the information on which to base our judgment. I am perfectly prepared to support a clause of this kind if what is presented for the Committee's scrutiny it is factually justified. 
 My concern about clause 38, which is underlined by the amendments, is that it seems in one respect to be unusual: it is a pre-emptive strike. On what basis is that strike to be carried out? What is the evidential basis to justify it? One only has to read clause 40 to see that, in the hands of a slightly unscrupulous or worried prosecutor, it would be a most powerful tool for depriving a defendant of the protection of a jury trial; it has no rational or justifiable basis whatever. In this instance, it contrasts with clause 40, under which at least jury tampering will have happened: here it will not have happened. If someone is accused of being a member of a nasty gang, it does not necessarily mean that jury tampering will occur but, like the hon. Member for Southwark, North and Bermondsey, I fear that that is exactly what will happen. 
 Any case with an background of intimidation, or involving intimidatory individuals, will immediately fall under these provisions. Because it is never possible to be 100 per cent. sure that jury tampering will not occur, pressure will inevitably be exerted towards having trial by judge alone, and we must be careful to prevent that. I presume that the Government's intention is to preserve jury trial as far as possible, 
 but I fear that this provision will unintentionally lead to an unsatisfactory outcome for insufficient reason.

Hilary Benn: Is not the hon. Gentleman's concern met by the requirement that the judge—we have to trust him—must be satisfied about the real and present danger that jury tampering may take place. That high test was inserted into the clause to meet the very point that the hon. Gentleman makes.

Dominic Grieve: That is indeed a key phrase. The amendment that would have altered it was a probing amendment to elicit discussion about what ''real and present danger'' means. It is not a term of art, so I assume that it is accorded its ordinary natural meaning. At what level does ''real'' danger kick in? Even a real danger could be slight, and ''present'' means simply that it exists at that time. I am not convinced that the words ''real and present danger'' constitute an adequate safeguard. I accept that the judiciary wants to protect the interests of defendants, but judges can be sloppy or lazy, or have other human foibles and faults.
 In such cases, judges are inevitably presented with a one-sided argument. All the defence counsel can do is say that it will not happen. Perhaps he could say, ''My client has 65 previous convictions, and each time he appeared in the Crown Court, it was never suggested that this had happened before.'' That would be the highlight of his presentation. Beyond that, the judge will be presented with police hearsay intelligence—that is what it amounts to—arguing that their estimation of the defendant and his associates is so low that they are the sort of people likely to engage in jury tampering. They might even argue that defendant X's first cousin three times removed was involved in jury tampering five years earlier. I am sorry to tell the Minister that that is what we are likely to get.

Vera Baird: I am also concerned about the prosecution or the police whispering into the judge's ear intelligence that cannot be challenged in any way. I note that clause 39 requires the process to be undergone at a preparatory hearing and that the parties have to be given an opportunity to make representations, but that is not useful without evidence pertaining to the other side's reply. It is a difficult conundrum to resolve without some sort of counsel—not the defendant's counsel—to represent the defendant and argue his position in the public interest. The problem of hearsay intelligence will, without some protective mechanism, represent a real difficulty.

Dominic Grieve: I must point out that it would have been possible to table other amendments and try to weave them in; one such amendment could have provided that no one should be denied jury trial on the basis set out in the clause if there has been no previous case of tampering connected with him. I suggest that simply as an example; at least something concrete would be available to go on, with regard to that individual. It might sometimes produce unfairness, but at least such an amendment would be something cogent.
 The provision is similar to those that we passed after the Omagh bombings, which were about 
 convicting someone, or doing something to their detriment, on the say-so of intelligence. It worries me, because the defence will be in a poor position to cope reasonably with the assertions made in such a case. There is nothing concrete in the provision to provide a trigger mechanism, such as that jury tampering has happened previously, or happened four times, say, in connection with a given defendant. In that case, it would be possible to present the evidence, which could not be denied. Both sides would know that it was valid—but the present provision means that police intelligence can be used to persuade the judge that there is a problem. 
 The other aspect of the matter is the idea that a jury trial would be taking place because the defendant was pleading not guilty. We talk in this country about trial by tabloid media; using the clause would send out a publicity signal about the nastiness of the defendant, about his being a lower form of animal life, about the fact that the police know him as an extremely bad lot, and about the fact that he must have loads of previous. That is very bad. 
 The application under the clause would have to be kept from potential jurors. It would have to be done in camera. However, the damage would be done, and the day the trial began without a jury, the press would presumably be free to comment on it: ''He was denied jury trial.'' Presumably there would be no reporting restrictions on that fact.

Stephen Hesford: In practice, would not it work in this way: that the thinner or softer the whisper in the judge's ear, the less likely he would be to be satisfied as to the second or third conditions? The softer the whisper, the less one can envisage subsections (5) or (6) applying.

Dominic Grieve: I accept that there may only be a whisper, but what evidence would there be? Let us be practical. Let us imagine that a gangland killing takes place in south London. The police say, ''This is a gangland case. It involves guns and these are the defendants' previous convictions''—although those may be nothing to do with jury tampering. ''We know they have a reputation for violence, as do their associates.'' Meanwhile the people concerned say that they are completely innocent. The police would say, ''Our reasons for wanting a trial without jury are that it will be difficult to protect jurors.''
 Going by the criteria in the clause a judge presented with that evidence would, I think, decide that there was a real and present danger. The sort of account that I have given is all that will need to be said to deprive someone of jury trial. What else can be said, unless there is evidence that jury tampering has already happened on a previous occasion? How can the defendants counter that? Indeed, I suspect that there would be procedural problems arising from the police telling the judge that while they had all sorts of information, they would have difficulty telling him about some of it.

John Mann: I presume, by the same logic, that the hon. Gentleman would rule out the proposals that have been floated for an in-camera
 session with a jury, precisely because of the possibility that that would suggest a level of guilt to the jury.

Dominic Grieve: I take the hon. Gentleman's point. In-camera trials may present difficulties. As I said in my intervention on the hon. Member for Southwark, North and Bermondsey, it might not be necessary for the court to be completely empty in an in-camera trial. I can see circumstances in which, for instance, accredited journalists could be allowed to report the trial without the defendant's relatives and everyone else coming into the public gallery. The jury might then not notice the difference.
 I am simply putting out that idea. There are a number of creative ways of dealing with the problem. In many cases in which I have been involved, one would be surprised at how few people are in the public gallery—it is often deserted. In the early part of the 20th century trial by jury was a form of public entertainment. Nowadays people can watch television, and following jury trials is not necessarily the most exciting thing they can do, although I accept that a trial with a high public profile might pose problems. 
 That might be a balancing factor, because the defence team may decide that they prefer to have a jury trial with the public gallery cleared. What worries me about clause 38 is that it is a one-sided argument in which the defence team are at a disadvantage in countering the application. That is what makes it so different in quality from clause 40—which we shall need to consider separately—where at least one can say, ''We have tried jury trial and it has been a failure, now justice must take its course. There are clear problems, someone has had their house riddled with machine gun bullets. The idea that we can proceed with a jury trial even with protection seems unrealistic. This is the sort of exception where we must apparently proclaim trial by judge alone''. That makes coherent sense to me, even though I want to see jury trial preserved as much as possible. 
 Once this provision is on the statute book, any trial involving difficult defendants with, say, a reputation for violence but not necessarily any reputation for jury tampering, will be taken away from juries altogether. I am mindful of what the Minister is trying to achieve, but I believe that if we removed clause 38 and left in clause 40, suitably amended, we would be providing sufficient protection. If there are examples in which that does not work, we could always revisit the issue in subsequent legislation. 
 As clause 38 stands, we are suddenly moving in a direction that will greatly reduce the access of certain defendants to trial by jury, which worries me. It will be difficult for judges to do anything other than accede to prosecution requests that will inevitably be based on hearsay, intelligence and anecdote. There will be few cases in which that does not apply. I hope the Committee will consider my amendments, but I accept that they are probing amendments. We may have had a stand part debate, but if it has shortened matters, so be it. 
 Clause 38 is unjustified. If the Minister wants to justify it then I beg him to produce the statistical evidential backing necessary to support it. Nothing I have seen so far does so. The clause raises serious implications for the continuation of jury trial in a large number of cases. It is potentially very unfair. I suspect that human rights applications will be made about what the judge has been told, what material has been made available to the defence, and on what material evidence the policeman has come to say his party piece. That is all undesirable. Clause 40 on its own may provide the necessary protection.

Mark Simmonds: I want to speak to the amendments tabled by my hon. Friends. Like them, I have concerns about clause 38. It is clear from what has been said that there are examples of severe jury tampering. However, one of the bases on which the law should be changed is the production of evidence to show that the changes set out in the clause would significantly reduce jury tampering. I want to reiterate the point that my hon. Friend the Member for Beaconsfield put to the Minister. If he can provide us with the statistics, it would greatly help us to decide whether the clause should be in or out of the Bill. How many trials, for example, are subject to jury tampering? How frequently do they occur? How many retrials take place? How many retrials are subject to secondary jury tampering? If defendants' fundamental rights are to be taken away, there must be a firm evidence base on which to do so.
 My second point relates to the phrase ''real and present danger'', about which my hon. Friend the Member for Beaconsfield and the hon. Member for Southwark, North and Bermondsey spoke eloquently. Almost all serious organised crime trials could come within the remit of the clause, so we are potentially removing the right to trial by jury from almost everyone who is accused of serious organised crime. I have great problems with that. 
 Thirdly, I have a specific question to which there may be an easy answer. On whose information would the jury be suspended? Would it be that of the investigating officer? His perception may be that it is in his interest to transfer the trial from a jury to a judge because he stands a greater chance of getting a conviction. Again, I have a problem with that. 
 Finally, can the Minister explain how the defendant will receive a fair trial from a judge who has concluded that he is the sort of person who may interfere or organise interference with juries? That is a paradox, and it must be addressed.

Vera Baird: I have one or two quick questions for the Minister, and I hope that he will be able to assist me. As regards the real and present danger provision, I do not follow Opposition Members for one minute in suggesting that there should be a very high standard of proof. It is very important to protect jurors and to take action as soon as there is a risk of jury tampering. None of that troubles me, but I am troubled by what happens when there is some such perceived risk. How is it determined that there is a risk?
 I would like to be assured that, where practical, every other option will be considered before the 
 provision in the clause is implemented. The difficulty is that this is the only provision in statute that deals with jury tampering. Usually, any threat is dealt with under the judge's jurisdiction, as part of his responsibility to ensure a fair trial. He might, for example, consider bussing people in from elsewhere so that they would not need protection. He might also consider moving the trial away from the present location if there are limits to the outreach of the likely tampering. Equally, it has been suggested that limits could be placed on public access, and that only the accredited press should be allowed in. All those possibilities should be exhausted before the provisions in the clause are triggered. My fear, however, is that those far better possibilities would not be acted on, because this is the only provision in statute. I ask the Minister to assure me that the Government intend that all those possibilities should be tried first, and that clause 38 should be used as a last resort. 
 Once those possibilities have been tried, the question arises as to how the judge decides that the conditions in the clause have been met. There is obviously an inherent difficulty in passing to the defendant the police intelligence that has given rise to concern, and there is a danger that the provisions will be abused. If the police wanted someone badly enough, there would be a temptation to rely heavily on evidence, such as hearsay, that they might not otherwise rely on. They would get rid of the uncertainty of a jury verdict, and they would have a judge whose predisposition was against the defendant. I make no specific accusations or allegations, but there is an obvious danger of that happening. 
 How can we ensure that the judge properly considers the crossing of those thresholds without the danger of abuse? If it is not practical for the defence to be told the information, I wonder if there is any possibility of introducing something analogous to a public interest immunity hearing. In such cases, intelligence or similar information that cannot realistically be disclosed to the defence is heard by the judge in the presence of the prosecution and a public interest counsel, a representative of the defendant who does not represent the defendant—that is probably as clear as mud. It is someone who is not instructed by the defendant and does not have a duty to pass on information to the defendant, as counsel ordinarily would have, but who has the job of defending the defendant's interests and ensuring that, if the threshold is crossed, it is done fairly. 
 If jurors are to be put in danger, and if the only way to keep them out of danger is massively to interfere with their lives for a long time—even then, the danger clearly remains—there seems to be little option but to take drastic measures. I am anxious that drastic measures should be taken only as a last resort and on a completely fair basis. I seek reassurance on that from the Minister.

Hilary Benn: We have had a good debate on the amendments and on the clause. Clause 38 and its companion clause, clause 40, which we shall discuss in due course, are intended to deal with what the Committee has acknowledged is a serious problem. I do not need to say any more about that, because the
 hon. Member for Woking spoke with insight and authority when he described, in graphic terms, precisely the problem that we are talking about.
 I have been asked what the phrase ''jury tampering'' means. In a sense, we have heard the answer. It clearly includes actual or attempted harm or threat to, or intimidation or bribery of, a jury or any of its members, and it could include improper approaches to a juror's family or friends and threats to a juror's property. The law currently takes a serious view of jury tampering. I submit that it is a serious problem, which must be dealt with extremely firmly because of the threat that it poses to the integrity of the whole criminal justice system. 
 As we have heard, the court can order police protection when it considers that there is a serious risk that jurors may be the subject of intimidation. The type and level of protection will vary. In a handful of cases each year, between six and 10 jurors undergo the stress and intrusion of 24-hour police protection, with officers accompanying them everywhere inside the courtroom and in what remains of their private lives. Anecdotal evidence indicates that jurors suffer considerable strain when placed under that protection, for obvious reasons. Their privacy is disrupted and their normal activities are curtailed. 
 Research by Merseyside police suggests that, in a few cases, jury protection measures, such as balloting juries rather than reading out their names in court—a process described by the hon. Member for Woking—are ineffective. Interviews have been conducted with jurors who served on a trial that collapsed as a result of improper approaches to jurors. I am aware of the particular case to which the hon. Gentleman referred from a conversation that I had with a recorder in Liverpool. I asked him about that.

Humfrey Malins: So did I.

Hilary Benn: There we are: perhaps it was at the same event. Interviews with jurors who had served on a trial that had collapsed as a result of improper approaches to three jury members revealed that those jurors had significant concerns for their safety. They suffered fear, stress, loss of sleep and serious interference with their daily lives. They also expressed concern about court security.
 In cases in which the nature and extent of the jury tampering threatens the fairness of a trial, the courts currently have no option other than to discharge the jury and terminate the trial. It is unacceptable that trials should be wrecked and due process subverted in that way. That does not serve the interests of justice. We cannot expect members of the public who have given up their time to serve on a jury to undergo the stress, anxiety and fear of intimidation that such protection involves. That is the purpose of subsection (5). 
 Amendment No. 256 concerns ''sure'' versus ''satisfied''. I am doubtful as to whether there is a real difference in the meaning. ''Satisfied'' is a standard form of wording, as the hon. Member for Woking will know, to indicate a requirement for a court to form a view on a point that is essentially a 
 matter of judgment. I am not persuaded of the case for departing from that. It could be argued that the flavour of absolute certainty that the amendment tries to convey is unattainable. Nobody can be certain about the future. To be satisfied of the matters that have been set out is all that can be asked.

Humfrey Malins: I can think of no legal tome in which the word ''satisfied'' is used on its own. If the Minister can, I shall be pleased to hear it. There is no flavour of absolute certainty, it is simply the word ''sure''. Where, in legal tomes, is the word ''satisfied'' used?

Hilary Benn: I bow to the hon. Gentleman's far greater knowledge of legal tomes. However, the term ''satisfied'' is used regularly in legislation. Ministers have to be satisfied on a wide variety of things in exercising their functions under legislation. Amendment No. 209 would confine the test to a situation in which both the second and the third conditions have been met. I am not persuaded of the argument because I think that it is right to consider the second condition on its own, in addition to the first one, which is that
''there is real and present danger that jury tampering would take place.''
 I emphasise ''would take place'', not might take place. I shall come on to the consideration that the judge would have to give to the arguments in deciding that. I am not persuaded of the case for combining the two. 
 Amendment No. 210 is about ''may'' versus ''must'', and I refer the hon. Gentleman to the argument that I advanced in response to the previous debate. As for amendment No. 212, I think that I have covered the expression ''jury tampering''. Amendment No. 247 seems to be an inappropriate way in which to deal with the risk of future events. A future event is not really susceptible to proof as such, but to evaluation. As hon. Members might be aware, the language of ''real and present danger'' echoes the test currently used in practice when considering whether police protection should be ordered in respect of a jury. 
 In answer to the questions that have been raised about the evidence, I would say that the judge must be satisfied on the basis of evidence that jury tampering 
 would take place. That evidence would have to be considered—decisions cannot be made on the basis of a whisper in the ear—and the defence would be able to see the evidence, subject to public interest immunity considerations. On the argument about the whisper, I would contend that clause 38 needs to be read in conjunction with clause 40. In relation to clause 38, in so far as it is argued that there is an incentive for the prosecution to try to get rid of jury trial by whispering, if they do not do that and they have got it wrong and jury tampering occurs, the protection of clause 40 kicks in and the attempt to subvert jury trial will have been prevented. As for the defendants, the hon. Member for Southwark, North and Bermondsey argued that we would end up with all these cases being considered without juries. What advantage would tampering— 
 It being ten minutes to Seven o'clock, The Chairman proceeded to put forthwith the Question already proposed from the Chair. 
 Amendment negatived. 
 The Chairman then proceeded to put forthwith the Question necessary to dispose of the business to be concluded at that time. 
 Question put, That clauses 38 to 48 ordered to stand part of the Bill:—
The Committee divided: Ayes 12, Noes 8.

Question accordingly agreed to. 
 Clauses 38 to 48 ordered to stand part of the Bill. 
 Adjourned at eight minutes to Seven o'clock till Thursday 16 January at ten minutes past Nine o'clock.